Emerging Market Economies and International Investment Law: Turkey-Africa Bilateral Investment Treaties

Vanderbilt Journal of Transnational Law Vanderbilt Journal of Transnational Law

Volume 52 Issue 4 October 2019

Article 5

Emerging Market Economies and International Investment Law: Emerging Market Economies and International Investment Law:

Turkey-Africa Bilateral Investment Treaties Turkey-Africa Bilateral Investment Treaties

Uche E. Ofodile

Part of the International Trade Law Commons, and the Marketing Law Commons

Emerging Market Economies and International Investment Law: Turkey-Africa Bilateral Investment Treaties

Uche Ewelukwa Ofodile*

to engage with new partners in Asia, the Middle East, and Latin America. Although emerging market economies and emerging market multinationals are playing an incredibly significant role in the global economy and are changing global economic governance in significant ways, their involvement in the making and unmaking of international economic law is frequently ignored or misunderstood. This Article addresses this by offering critical insight into how emerging market economies are using, adapting, and sometimes abandoning established international economic norms.

.......................................... ............................

Background

962 962

963 964 965 965 966 968 969

970 972

Turkey-Africa Relations: Before 1923.................... Turkey-Africa Relations: Between 1923 and 1998 Turkey-Africa Relations: After 1998

...................... ...................

................... 963

Economic Dimensions

C.

1. 2. 3.

Foreign Direct Investment.......... Trade... ....................... Development Assistance.............. Political/Diplomatic Cooperation............ Bilateral Relations ..... .......... Relations with Continental and Subregional Organizations ......... D. Global Governance/Multilateralism .......

1. 2.

C. D.

Legal Instruments in Turkey-Africa Relations .............................. Principles That Underpin Turkey-Africa Relations .............................. 975 The Agenda for Turkey-Africa Cooperation 976 Turkey-Africa Relations: Emerging Institutional Framework ........

.........

TURKEY IN AFRICA: FOREIGN POLICY TOOLS AND INSTITUTIONS A. B.

Turkey's Display of Soft Power in Africa. Turkey's Foreign Policy Institutions ........

Turk Eximbank

..................

977 978 980 981

982 984 984

985 986 987

Foreign Economic Relations Board ................ (DEIK) ......... Turkish Cooperation and Coordination Agency (TIKA)....... TURKEY-AFRICA BILATERAL INVESTMENT TREATIES...

A. B.

Trends of Turkey-Africa BITs.................. Investor Protection Elements in Turkey-Africa BITs

.....................

National Treatment .............. 1. 2. Most Favored Nation Treatment 3.

Absolute Standard of Treatment: Fair and Equitable Treatment, Full Protection and Security, and .................. 987 Nonimpairment 989 Protection Against Expropriation 991 Right to Transfer Capital............ 992 Transparency Obligations........... Investor-State Dispute Settlement 993

C.

Sustainable Development Elements in Turkey-African BITs

...................

996 998

Economic Development in the ...................... Preamble Scope of Application Clause ........ Postestablishment Rights: the Right of Host State to Restrict Admission of Investor/Investments............ .......... General Exception ..... Limits on Expropriation............. The "Not Lowering of Standards" Clause Nonderogation Clause ............ Limits on Investor Rights and Guarantees

.........................

999 1000 1002

1003 1004

Turkey-Africa BITs: Missing Elements...

1006 1007

4. 5. 6. 7.

2. 3.

5.

6.

Variations among Turkey-Africa BITs ............... ........... Development Dimension not Prioritized..................... The Right to Regulate Is Not Affirmed Explicitly .....

.........

Reforming Turkey-Africa BITs: Options for Countries in Africa.........

............ Termination and Renegotiation.. Consultation and Treaty Review Treaty Amendment....... ....... Treaty Replacement.............

1024 1024 1026 1028 1030

Key Policy Considerations that Shape Turykey-Africa BIT Regime .......

......

......................

......................

Turkey's Desire to Be Seen as Africa's "Friend" Turkey's Membership in the Council of Europe Turkey's Self-Interest ............ Ankara Ability or Inability to Deliver on Its Many Promises to Countries in Africa ............ Competition for Capital From Emerging Markets .... Disturbing Questions that Critics May Dare to Ask ................ Crisis in International Investment Law and Ongoing Reform Efforts

..........

1031 1033

1038 1044

Practical Considerations ...

VIII.

CONCLUSION

Turkey's Immense Experience with BITs ............. Turkey's Deployment of Soft Power in the African Continent ............. Lack of Coordination on the African Side ...............

............ ....................................

1045 1047

1. 2. 3. 4.

3. 4.

5.

6.

Slowly, steadily, and silently, the Republic of Turkey (Turkey) is concluding important and far-reaching BITs with countries in Africa.' To date, Turkey has concluded BITs with about twenty-eight different countries in Africa.2 While much attention has focused on Chinarelations,3 economic cooperation arrangements Africa economic between African states and other emerging market economies have the radar. Relations between Turkey and largely flown under countries in Africa have been deepening and widening since 1998 when Ankara adopted an Africa Action Plan4 and stepped up in 2005 when Turkey launched its "Opening to Africa" policy5 and declared the year the "Year of Africa."6 The result is that, although Turkey is still relatively new in African politics, trade, and aid circles, "it has already expanded its area of influence in the continent by linking its soft power tools of transportation links, trade, and education closely

[ VOL. 52.'949

with its foreign policy."7 Once limited to North Africa, Ankara's interest in Africa is now extending to all parts of the continent.8 From every indication, African countries, individually and collectively, are responding positively to Ankara's overtures.9 The African Union (AU), a continental union consisting of fifty-five countries,10 granted Turkey "Observer Status" in 2005.11 In 2008, the AU declared Turkey a "Strategic Partner" of the African Continent.12 In January 2013, Turkey became the twenty-sixth nonregional member of the African Development Bank and the twenty-sixth State Participant to the African Development Fund.'3 Since 2003, Turkey has concluded BITs with more than half of the countries in Africa.14 Turkey has concluded more bilateral investment treaties with countries in Africa than partners, such as the United States (nine BITs with countries in Africa)15 and Japan (three BITs with countries in Africa).'6

Alpaslan Ozerdem, How Turkey is emerging as a development partner in

Africa, GUARDIAN, Apr. 10, 2013, https://www.theguardian.com/global-developmentprofessionals-network/201 3/apr/10/turkey-development-partner-africa [https://perma.cc/JZ5F-3JMF] (archived Aug. 11, 2019).

8.

See generally Mehmet Ozkan, Turkey discovers Africa: implications and prospects, SETA FOUND. FOR POL., ECON. & Soc. RES. (2008); DAVID SHINN, TURKEY'S ENGAGEMENT STRATEGIC DIVERSIFICATION (Chatham House 2015).

IN SUB-SAHARAN AFRICA: SHIFTING ALLIANCES AND

9.

The author's assessment is based on deepening economic, diplomatic and

cultural ties between Turkey and countries in Africa. See infra Part I.

10.

See AFRICAN UNION,

[https://perma.cc/M3CA-EATD] AFRICAN DEv. BANK GROUP, https://www.afdb.org/en/about/mission-strategy visited Sept. 8, 2019) [https://perma.cc/2MV8-FQYK] (archived Aug. 11, 2019).

2019) (archived Aug. 11, 2019); Mission & Strategy, (last

(last visited Sept.

https://au.int/

11.

Turkey and The African Union, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., http://www.mfa.gov.tr/turkey-and-the-african-union.en.mfa (last visited Sept. 8, 2019) [https://perma.cc/E3DV-SRTM] (archived Aug. 11, 2019).

12. The framework of Africa's strategic partnership takes four distinct forms: (i) continent to continent partnerships; (ii) continent to country partnerships such as Africa-India, Africa-Turkey, Africa-China, and Africa-Japan; (iii) partnerships in demand as new states or regions request additional partnerships; and (iv) partnership with other institutions such as the Organisation of American States (OAS), the Organisation of Islamic Conference (OIC) the Commonwealth and La Francophonie. Africa's Strategic Partnership with Other Parts of the World, AFRICAN UNION, https://au.int/en/partnerships/intro (last visited Sept. 8, 2019) [https://perma.ccV835BB9A] (archived Aug. 11, 2019).

13. With this admission, Turkey became the following the country's admission as the 26th State Participant in the African Development Fund and the 78th Member State of the African Development Bank. Felix Njoku, The Republic of Turkey Joins African Development Bank Group, AFRICAN DEV. BANK GROUP https://www.afdb.org/en/news-and-events/the-republic-of-turkey-joins-africandevelopment-bank-group-12660/ 2019).

[https://perma.cc/53CL-E6Q3]

(Sept. 12, 2013),

14. 15.

Investment Policy Hub -Turkey, supra note 1. International Investment Agreements Navigator-United States of America,

U.N. CONFERENCE ON TRADE & DEV., https://investmentpolicy.unctad.org/internationalinvestment-agreements/countries/223/united-states-of-america (last visited Sept. 8, 2019) [https://perma.cc/UNR9-EJJ8J (archived Aug. 11, 2019).

Turkey-Africa economic engagements underscore the shifting, in the global and growing role of emerging market economies economy17 and in the economies of many developing countries.'8 Over the last two decades, emerging market economies have slowly and steadily established themselves as key players in the world economy and as major players on the foreign direct investment (FDI) scene.19 According to the World Bank's Global Economic Prospects 2018, capital flows to emerging economies strengthened in 2016 and again in 2017.20 In turn, emerging market economies are exporting more and more capital to developed countries, to other emerging market to developing economies.21 Outward FDI from economies, and as emerging market emerging multinationals (EMNCs) have become more dominant on the global stage.22 Since 1990, emerging market economies have launched more than seventeen thousand large companies according to McKinsey emerging market Global multinationals accounted for 26 percent of the Fortune 500, up from 5

economies has grown

(McKinsey).23

In 2013,

Institute

even

percent between 1980 and 2000.24 Experts predict that by 2025, emerging market multinationals will "account for more than 45 percent of the Fortune Global 500."25

Turkey and countries in Africa are concluding BITs at a time when international investment law is in crisis and is witnessing defectionS26 and facing multiple calls for fundamental overhaul.27 While some countries are exiting the system,28 many others are keen on reforming the system.29 The United Nations Conference on Trade and Development (UNCTAD) has long acknowledged this crisis and

the organization's vision on designing

led the movement for reform.30 In its 2012 Investment Policy Framework for Sustainable Development (updated in 2015), UNCTAD international presented investment policies for sustainable development.31 In 2016, the Group of Twenty (G20) Ministers adopted the G20 Guiding Principles for Global Investment Policymaking and essentially acknowledged the need for reform.32

This Article underscores a new normal for countries in Africa-

increased engagement with emerging partners in Asia, the Middle East, and Latin America.33 Thanks to emerging partners, the patterns of trade, investment, and aid to Africa are shifting.34 Is Africa ready to engage emerging partners and, if so, on what terms? the end of Does postcolonialism?35 Does Africa have a strategy for engaging with emerging partners? Does Africa need a strategy? Is Africa effectively harnessing its emerging partnerships for sustainable development?

in global wealth

really

spell

shift

The changing role of emerging market economies in the global economy is raising a number of interesting questions for international law. For example, as lawyers and for international economic emerging markets' economies are transforming the global economy, are they also transforming or attempting to transform international economic law and policy? And if emerging markets' economies are to what transforming

international economic

law and policy,

degree?36 In their engagements with other developing countries, are emerging market economies using and asserting the same norms and principles that Western nations developed and have deployed for years?37 In 2011, an editorial in the OECD Observer aptly asked: "Before the talk was in dollars. Now leaders speak equally of Chinese renminbi, Indian rupees and Brazilian reals. Are the last shackles of colonialism finally being broken? Or is another form of dependence taking over, time based on commodity hungry emerging markets?"38

this

Against the backdrop of the changing role of emerging markets in the global economy and the renewed emphasis on sustainable development among world leaders,39 this Article takes a look at the BITs that Turkey has concluded, and is still concluding, with countries in Africa.40 In the BITs with countries in Africa, is Turkey merely conforming to the norms and standards established by developed countries, or in fundamental ways? Compared to BITs between Western nations and countries in Africa, do Turkey-Africa BITs espouse purposes other than investor protection, and are Turkey-Africa BITs more oriented sustainable development?41 Are Turkey-Africa BITs towards designed to provide sufficient policy space for host states?

is Turkey changing

these norms

Since 2003, Turkey has concluded thirty-one BITs with twentytwo separate BITs with

eight countries in Africa42 (including

Nigeria,43 Sudan,44 and Tunisia45). Out of the fifty-four countries in Africa, twenty-eight countries have concluded BITs with Turkey (See Annex A and B).46 Since 2011, with the exception of 2012 and 2015, Turkey has concluded at least two BITs every year with countries in Africa.47 Turkey concluded two BITs in 2018,48 four BITs in 2017,49 four BITs in 2016,50 two BITs in 2014,51 four BITs in 2013,52 and two BITs in 2011 with countries in Africa.53

This Article focuses on six BITs that Turkey has with countries in Africa that are actually in force and are available in English (BITs with Egypt,54 Ethiopia,55 Libya,56 Morocco,57 Senegal,58 and

Tunisia59). In addition, this Article also reflects on ten additional BITs that are available and are in English but not in force (BITs with Algeria,60 Cameroon,61 Gabon,62 Gambia,63 Nigeria,64 Kenya,65

Rwanda,66 South Africa,67 Sudan,68 and Tanzania69). This Article is divided into six Parts. Part I examines the history and economic dimensions of Turkey-Africa relations. Part II offers an overview of the legal instruments and fundamental principles that underpin Turkey-Africa relations. The policy tools and institutions that drive Turkey's foreign policy are examined in Part III. With a focus on BITs, Part IV examines trends in Turkey-Africa BITs, reviews the investor-protection elements in these BITs, as well as the sustainable development elements in the agreements. Drawing on international best practices, Part V offers a thorough critique of Turkey-Africa BITs. Part VI discusses policy and practical considerations that could complicate any effort to reform Turkey-Africa BITs.

Emerging market economies are playing an incredibly significant role in the global economy and in the economies of developing and the least developed countries.70 This Article fills a very important gap in the available literature by offering critical insight into how emerging market economies are using, adapting, and sometimes abandoning established international economic norms.

Turkey-Africa relations have evolved in three stages: the period before 1923 when Turkey became a modern nation-state, the period between 1923 and 1998, and the period since 1998.71 Much of this Article focuses on Turkey-Africa relations as they have developed since 1998. Turkey-Africa relations are evolving on multiple fronts, including on the economic, development, political, and social fronts. The relationship is deepening and is measured by indicators such as institutionalized diplomatic engagement, highly structured multiyear and/or multicountry and investment-facilitating assistance, technological formal financial engagement, and even security cooperation.

interventions, technical

mechanisms,

development

transfer,

A. Background

1. Turkey-Africa Relations: Before 1923

Turkey and Africa have long-standing historical ties as a result of the reach and influence of the Ottoman Empire in the sixteenth century.72 At its height, the Ottoman Empire had its tentacles in Egypt, Tunisia, Algeria, Libya, Morocco, and the Horn of Africa.73 In its engagement with Africa, Turkey has routinely stressed these historical ties.74 According to the Ministry of Foreign Affairs (MFA), Turkey "has long-standing historical and cultural relations with the African continent, dating back centuries," and the first state founded by the Turks in Africa was the Tulunid Dynasty, which ruled today's Egypt in the ninth and tenth centuries.75 The MFA asserts on its website that "[b]eing an Afro-Eurasian state, Turkey's policy of opening up to Africa is not just the reflection of a transient political

and economic expectation" but "is the product of a process with strong historical and cultural aspects."76

2. Turkey-Africa Relations: Between 1923 and 1998

The period between 1923 and 1998 has been described as a dead era as far as Turkish-African relations are concerned.77 Upon its in 1923, when the Turkish Republic was created, independence Ankara adopted a foreign policy based on westernization and secularism, which reflected the Kemalist perception of international relations.78 The building blocks of this policy, according to Abdinor Hassan Dahir, "were secularism and modernization by looking to the West for direction (westernization) and cutting ties with the Ottoman past, keeping the country together through securitization based on the defined borders of the republic, and pursuing inward-looking noninterventionist/nonrevisionist norms."7 Against the backdrop of Ataturk's "Peace at Home, peace in the world" approach, TurkeyAfrica relations received little or no attention during this period and were relegated to the background.80 Nevertheless, Turkey maintained diplomatic relations with a number of countries in Africa.81 For example, Turkey opened the Turkish Consulate General in Lagos in 1956.82

3. Turkey-Africa Relations: After 1998

Turkish activism in Africa started with Ankara's "Opening to Africa Policy" adopted in the 1998 Action Plan and gained momentum when the Justice and Development Party's (Turkish: Adalate ve Kalkinma Partisi (AKP rule began in the early 2000s.83 In 2003, the "The Strategy Development of Turkish government Economic Relationships with Africa,"84 and in 2005, the government

launched

unveiled Turkey's "Open to Africa Policy."85 The Turkish Government also declared 2005 the "Year of Africa."86 Also in 2005, Turkish Prime Minister Recep Tayyip Erdogan visited Ethiopia and South Africa making it "the first official visit by a Turkish prime minister to a country south of the equator."87

is both wide and multifaceted.97 From every indication, Africa Turkey-Africa economic relations are gaining momentum on multiple fronts: FDI, trade, and development assistance.

1. Foreign Direct Investment

There are conflicting figures on the volume of Turkish FDI in Africa.98 Turkish direct investment to Africa has seen a tenfold increase since 2004 and is now between $5 to $8 billion.99 Turkish FDI in Africa was less than $100 million in 2003100 but surpassed $6 billion in 2015101 and $6.5 billion in 2017.102 In Africa, Ethiopia is the largest investment destination for Turkish FDI.03 Over $2.5 billion of the total $6 billion Turkish FDI in Africa goes to Ethiopia.104 In Ethiopia, Turkish companies are engaged in the textile and apparel industry but are showing growing interest in sectors, such as energy, steel, ceramics, and construction.105 Beyond FDI, Turkish contractors are undertaking projects in Africa and have so far undertaken ovrer 1,150 projects in Africa worth $55 billion.106

2. Trade

Trade "is one of the most important drivers of Turkey's recent emphasis on Africa."07 There are conflicting figures of the volume of trade, a clear indication that the exact volume of Turkey-Africa is not known.108 According to the Anadolu Turkey-Africa trade

Agency, an international news agency based in Ankara, Turkey's trade with African countries has grown sixfold in the past fifteen years to $17.5 billion in 2017.109 According to the Turkish Ministry of Trade, "Turkey's trade volume with Africa totaled USD 19.5 billion in 2015, up 16% from 2008 and 258% from 2003. Turkey's export in 2003-2015 increased almost sixfold and import has more than doubled in the same period."110

Turkey's trade with the continent was and is still concentrated in North Africa, but this is gradually changing. In 2016, Turkey reportedly had more than $10 billion in trade with Egypt, Algeria, and Morocco."11 In 2015, Turkey exported $4 billion in goods to subSaharan African countries,112 up from $750 million in 2004.113 South African Republic, Nigeria, Ethiopia, Ghana, and C6te d'Ivoire are among Turkey's top customers in sub-Saharan Africa.114 Turkey's trade with South Africa constitutes approximately 40 percent of Turkey's trade with sub-Saharan African countries;115 in 2015, trade volume between the two countries stood at $1.4 billion.116

3. Development Assistance

Humanitarian aid and development assistance are relatively new instruments in Turkey's foreign-policy tool kit."17 Turkey is contributing to the geopolitical landscape of humanitarian assistance, and of development aid more widely."18 Over the past decade, the

that of being a donor country."9 Turkey

position of Turkey has gradually moved from that of being an aid is now recipient considered one of the world's top donors and is now a net contributor to Luca of official development assistance Ventura:

(ODA).120 According

In terms of economic assistance to countries in Africa, subSaharan Africa was reportedly the first region to begin receiving Turkish aid;123 Turkey is steadily increasing its footprint.124 In 2011, Erdogan (then Prime Minister of Turkey) travelled to Somalia to raise awareness in the international community about the ongoing conflict in Somalia125 and was the first non-African leader to visit Somalia over the past two decades.126 Since 2011, Turkey has and other assistance committed predominantly Muslim countries in Africa and other regions.'27 From 2011-2012, Erdokan committed to help Somalia recover from years of war and famine, and Turkey quickly became "the largest donor among non-OECD-DAC countries and one of the most active actors in humanitarian aid and peace-building" efforts in Somalia.128 In Somalia, Turkish aid has gone beyond direct financial transfers.129 Turkish aid organizations, such as Turkish Red Crescent (Kizilay)

development

Somalia

and the Turkish International Cooperation and Development Agency (TIKA) "are highly active in a wide range of infrastructure, welfare and service sector programmes in the country such as clearing rubbish, providing clean water, building hospitals and running the Mogadishu's permanent settlement for displaced Somalians."o30 As of 2013, Africa was reportedly the largest overall beneficiary of aid from the TIKA, 33.7 percent total disbursement. 131

receiving

agency's

Development cooperation between Turkey and countries in Africa will likely continue. Both sides plan to enhance cooperation in a wide variety of areas, including the fields of health, youth development, empowerment, infrastructure development.132 In the Second Africa-Turkey Summit Declaration (2014): "New Model of Partnership for the Strengthening of Sustainable Development and Integration" (2014 Malabo Declaration) adopted to cooperating with each other.133

in 2014, both sides

their commitment

raffirmed

womens'

C. Political/Diplomatic Cooperation

Political relations between Turkey and countries in Africa are deepening. Turkey is engaging bilaterally and regionally through continental-wide the African Development Bank.134 Faced with major challenges to European Union accession135 and shifting alliances in the Middle East,136

institutions, such as the AU and

Turkey is going farther to find trade, investment, and diplomatic partners.

1. Bilateral Relations

Enlarging the level of its representation in the continent is important to Ankara.137 Consequently, the last decade has seen Turkey decisively opening new embassies in Africa and supporting numerous official visits to the continent.38

In 2009, Turkey had only twelve Embassies in Africa.139 Since 2009, Turkey has embarked on an ambitious goal of opening embassies and consulates in almost every country in Africa.140 According to David Shinn:

In 2017, Turkey announced plans to open five new embassies in Africa, bringing Turkish embassies in the region to about fortyfour.142 Turkey plans to open even more embassies in Africa.143 In

response to Ankara's diplomatic overtures, a growing number of countries in Africa now have embassies in Turkey, and more have declared their decisions to open embassies in Ankara.144

High-level official visits are also a very important tool in Ankara's opening up to Africa agenda.145 To strengthen bilateral relations with countries in Africa, President Erdogan has stepped up his visits to Africa.146 Indeed, "[b]etween 2009 and 2011 there were 37 visits to Africa made by either the Turkish president, prime minister, parliamentary speaker or minister of foreign affairs. Over the same period, there were 76 visits to Turkey by African leaders of similar rank."147 In the last ten years, President Erdogan has paid more than thirty visits to twenty-eight African countries as both prime minister and president prompting Alexey Boguslavskiy to observe, "[t]he President of Turkey R. Erdokan has become an absolute record-breaker among leaders of non-African states by the number of visits on the African continent, Sub-Saharan African countries being the major focus."148 Official visits from African leaders to Turkey are increasing.149

2. Relations with Continental and Subregional Organizations

Beyond bilateral relations, Turkey is also pursuing relations with regional organizations in Africa, such as the African Union and the African Development Bank (the Bank).150 Turkey has been an Observer Country since 2005 and Strategic Partner since 2008 of the African Union.151 Since 2009, Turkey has been making an annual

contribution of $1 million to the African Union.152 Turkey has also pledged to "remain committed to support the institutional capacities of the African Union and other regional organizations in achieving the priority areas which will consolidate African progress on ownership of African matters."153 In his 2014 speech delivered on the occasion of the second Turkey-Africa Partnership Summit, President the increasing political significance of the Erdokan "welcome[d] African Union in 'addition to its forceful representation, and the active role it plays in solving the problems arising in the member countries," and pledged that Turkey "will continue [its] financial to the budget of the African Union in the coming contribution years."154

Turkey is increasingly involved in the activities of the African Development Bank.155 In January 2013, Turkey became the twentysixth nonregional member of the African Development Bank and the twenty-sixth State Participant of the African Development Fund.156 In March 2014, Turkey gave its consent for the African Development Bank to issue bonds denominated in Turkish Lira.?57 To date, the African Development Bank has issued numerous bonds denominated in Turkish Lira, and has raised 1,337.4 million TRY since 2009 through forty-four transactions.158 In 2016, the African Development Bank, together with the Under Secretariat of the Turkish Treasury and Foreign Economic Relations Board of Turkey, organized the first Business Opportunities Seminar to strengthen partnerships between the Bank and stakeholders in Turkey.159 In April 2018, the Bank initiated technical cooperation with the Turk Eximbank.160

9 72

Turkey is also engaging countries in Africa at the level of regional economic communities and has obtained observer status in most of the regional economic communities (RECs) in Africa.161

D. Global Governance IMultilateralism

Turkey is gradually positioning itself as a leading international voice in Africa and as a voice for and a strategic ally of Africa on the global stage.162 In 2013, when Turkey was actively campaigning for a seat on the United Nations Security Council, Ankara promised African states that "[i]f elected, Turkey's UNSC membership in 20142015 will be an opportunity for the AU to be even much more stronger on the international scene, as Turkey, an Afro-Eurasian country, will indeed be the voice of Africa in this century which is the Century of Africa."163 In 2010, Turkey cochaired the "International Donor's Conference for the Reconstruction and Development of Darfur." 164 In May 2011, Turkey hosted the Fourth United Nations Conference on the Least Developed Countries in Istanbul.165 In line with its resolve to pursue robust comprehensive policy in Africa, in 2016, Turkey hosted the High Level Partnership Forum for Somalia in Istanbul.66

161. Since 2005, the Turkish Embassy in Abuja has been accredited to the Economic Community of West African States. Since 2010, the Turkish Embassy in Dares-Salaam has been accredited to the East African Community. In 2012, the Turkish Embassy in Lusaka became accredited to Common Market for Eastern and Southern Africa, and in 2012, the Turkish Embassy in Addis Ababa became accredited to the Intergovernmental Authority on Development Partners Forum. Since 2013, the Turkish Embassy in Libreville has been accredited to Economic Community of Central African States. See Turkey-Africa Relations, supra note 4; see also Turkey-Africa Partnership High Level Officials Meeting (Talking Points), supra note 114.

162. See generally Aylin Taghan, Turkey's Emergence as a Global Actor in Africa: 2016),

A Special Focus on Mozambique, FOREIGN POL'Y http://foreignpolicy.org.tr/dis-politika-foreign-policy-vol-xxxxiii-no-1-2016-turkeysemergence-as-a-global-actor-in-africa-a-special-focus-on-mozambiquel [https://perma.cc/8FGN-5WQU] (archived Aug. 11, 2019).

INST.

163. Turkey-Africa Partnership High Level Officials Meeting (Talking Points),

supra note 114.

164. Darfur donor meeting in March eyes $2 billion -Egypt, REUTERS, Mar. 11, [https://perma.cc/PU4L-DD36]

2012, https://www.reuters.comlarticle/idUSMCD175712 (archived Aug. 11, 2019).

165. Fourth United Nations Conference on the Least Developed Countries, UNITED 2019)

NATIONS, http://www.un.org/en/conf/ldc/ [https://perma.cc/NLB9-KYK2] (archived Aug. 11, 2019).

166. The Somalia High Level Partnership Forum is the highest decision-making mechanism of a process in which the Somali Government, the United Nations (U.N.), and key donor countries are parties. The sixth meeting of the Forum was held in Istanbul under the co-chairmanship of President Erdokan, H.E. Hassan Sheikh Mohamud, President of Somalia, and H.E. Jan Eliasson, U.N. Deputy Sec'y-Gen. See Press Release, Turkish Ministry of Foreign Affairs, Press Release Regarding the High Level Partnership Forum on Somalia to be Held on 23-24 February 2016 in Istanbul (Feb.

http://www.mfa.gov.tr/no_-48-22-february-2016-press-release-

2016),

22,

to Africa.167 Turkey "defined

At the global level, Turkey has attempted to champion causes its G20 presidency as important representing the interests of low income, least developed, and SSA countries."168 During the Turkish G20 Presidency, G20 Leaders adopted a framework to strengthen the dialogue between G20 and low income developing countries. 169

A number of legal instruments underpin the unfolding economic relations between Turkey and countries in Africa. These documents set out the vision for Turkey-Africa relations, identify key areas of cooperation, and map the agenda for deepening the relationship between the two sides in the coming years.

A. Legal Instruments in Turkey-Africa Relations

A growing number of legal instruments are shaping TurkeyAfrica relations. While some instruments (e.g., BITs) are binding if and when they are ratified, most of the instruments that underpin Turkey-Africa relations are not binding and could be classified as "soft law" instruments.170 Free trade agreements are not very common in Turkey-Africa relations. Turkey has signed free trade

agreements with four African countries: Egypt (December 27, 2005),171 Morocco (April 7, 2004),172 Tunisia (November 25, 2004),173 and Mauritius (2011).174 There are reports that Turkey is currently in trade talks with Cameroon, the DRC, and Seychelles, but these reports cannot be substantiated.175 Overall, key legal instruments in Turkey-Africa relations include

* The Istanbul Declaration on Turkey-Africa Partnership:

Cooperation and Solidarity for a Common Future adopted at the First Turkey-Africa Cooperation Summit in 2008 (2008 Istanbul Declaration);176

* The Cooperation Framework for Turkey-Africa Partnership

adopted at the First Turkey-Africa Cooperation Summit in 2008;177

* The Joint Implementation Plan of Turkey-Africa Partnership

2010-2014 (First Implementation Plan);178

* The Joint Declaration and the Joint Action Plan adopted at the first Ministerial meeting held on the 16th December 2011 in Istanbul;179

* The Second Africa-Turkey Summit Declaration (2014): "New Model of Partnership for the Strengthening of Sustainable Development and Integration" (2014 Malabo Declaration);180

* The Turkey-Africa Joint Implementation Plan 2015-2019, adopted at the Second Turkey-Africa Partnership Summit in 2014; and181

* Thirty-eight Economic Cooperation Agreements, including at

least thirty-one known BITs.182

In addition to the legal instruments that underpin TurkeyAfrica relations, there are numerous investment contracts and construction agreements between Turkish businesses and countries in Africa.'83 Security pacts between Turkey and a growing number of countries in Africa are also important, such as the pact that laid the foundation for Ankara to establish and launch Turkey's biggest overseas military base in Mogadishu, Somalia, in 2017.184

B. Principles That Underpin Turkey-Africa Relations

The principles that underpin Turkey-Africa relations are spelled out in the 2008 Istanbul Declaration85 and the 2014 Malabo Declaration.186 In the Istanbul Declaration, the parties identified several principles that will guide the Africa-Turkey partnership.187 These include inter alia the principles of: respect for the principles of the United Nations (UN) Charter and the Constitutive Act of the African Union, sovereign equality of states, the universality of human rights and respect of fundamental freedoms, and peaceful settlement of disputes. In

their adherence to the goals and principles stipulated in the Istanbul Declaration.188

the Malabo Declaration,

the parties

reaffirmed

C. The Agenda for Turkey-Africa Cooperation

(SMEs);

The agenda for Turkey-Africa cooperation is quite extensive. At the Turkey-Africa Cooperation Summit held in 2008 with the participation of forty-nine countries, the two sides agreed to cooperate with vigor, in nine areas: (1) intergovernmental cooperation; (2) trade and investment; (3) agriculture, agribusiness, rural development, water resources management, and scale enterprises security; (6) infrastructure, energy, and transport; tourism, and education; (8) media, information, and communication technology; and (9) the environment.189 To advance the identified agenda, the parties adopted the Framework of Cooperation for implementing the Istanbul Declaration.1'o In 2014, the two sides expressed interest in deepening collaboration in a number of fields. Specifically, the two sides agreed to continue collaboration in a number of fields including the fields of peace and security, trade, investment, agriculture, and infrastructure development.

small and medium and (7) culture,

(4) health;

(5) peace

D. Turkey-Africa Relations: Emerging Institutional Framework

In 2008, the Parties adopted the Joint Implementation Plan of Turkey-Africa Partnership 2010-2014 (First Implementation Plan) in accordance with the Istanbul Declaration.19i In 2014, the parties adopted the Joint Implementation Plan of Africa-Turkey Partnership 2015-2019 (Second Implementation Plan).192 The two documents lay down the basis for establishing institutional mechanisms shape cooperation arrangements. the parties have agreed to, inter alia, "strengthen their inter-governmental links and explore new areas of cooperation"; "promote the exchange of high level visits"; and "conduct regular inter-governmental dialogue and cooperation in order to create and maintain a favorable climate for business contacts and trade between Africa and Turkey."193

the strengthening

Turkey-Africa

that will

The parties have also agreed to establish follow-up mechanisms

at several levels as follows:

Using a multitude of strategies, tools, and institutions, Turkey has been fairly successful in penetrating Africa.195 In the last decade, "a wide array of new liberal instruments has been added to the toolkit of Turkish diplomats."196 Turkey is using both traditional tools of foreign policy (e.g., trade, aid, and investment) and soft power (e.g., development assistance, humanitarian aid, and cultural diplomacy) to make an influence in Africa.197

A. Turkey's Display of Soft Power in Africa

Turkish foreign policy makers are constantly adding new instruments to their tool kit even while improving conventional tools. Conventional devices deployed so far by Turkey in Africa include trade, aid, and FDI.19s Soft power has also been an important tool in Turkey's foray into Africa.'99 Turkey is using new means, such as flights, hospitals, schools, scholarships, and other civil society organizations to get into Africa.200 In March 2018, National Public Radio's Peter Kenyon observed

Schools and hospitals are very important in Turkey's Africa agenda and are some of the primary tools that Turkey relies on for its soft projection of power in Africa.202 "The Gillen movement-founded by Turkish cleric Fethullah Giilen-was initially an instrument of Turkey's soft power approach in Africa."203 However, since the Turkish government's fallout with Fethullah Gillen, the government

has tried to steer its activities through government-run agencies.204 The Maarif Foundation, a government-run agency, is beginning to operate schools in Africa.205 Established in 2016 by the ruling Justice and Development Party, the Maarif Foundation has taken over seventy-six schools linked to the Gillen movement in ten countries in Africa.206 The Maarif Foundation has reportedly "opened 32 new schools in eleven countries: Gambia, Sierra Leone, Djibouti, Sao Tome the United States, Kosovo, Afghanistan, Georgia, and Principe, Bosnia and Herzegovina, Tanzania and Macedonia, having a total of 1,127 students."207 The Turkish Ministry of National Education, and the Maarif Foundation, hosted the first Turkey-Africa Education Ministers Conference in 2017.208 Since 1992, Turkey has reportedly provided undergraduate, graduate, and doctorate scholarships to over eight thousand African students.209

Turkish Airlines' "bullish African expansion" has been noted by external observers and is welcomed---even celebrated-by many in Africa.210 Today, Turkish Airlines is "the largest international carrier in Africa in terms of total number of destinations."211 In 2012, when Turkish Airlines launched twice daily service to Mogadishu, Somalia, it became the "third carrier to operate at Mogadishu International Airport and the first carrier from outside Africa to offer scheduled flights to and from Mogadishu in 21 years."212 Africa Experience Sharing Program, a program akin to the U.S. Peace Corps, provides an opportunity for Turkish students to visit several African countries

to volunteer.213 "The program the Turkish Cooperation and Coordination Agency (TIKA) in cooperation with Turkish Airlines, Anadolu Agency, and state broadcaster Turkish Radio and Television (TRT)."214

is organized by

B. Turkey's Foreign Policy Institutions

At the forefront of Turkish foreign policy is the Ministry of Foreign Affairs (Ministry).215 The Ministry was established in 1920 and is responsible for Turkey's foreign relations.216 Between 1923 and 2001, Turkey's foreign policy was largely based on the Westerninspired reforms of Mustafa Kemal Atatirk, which placed heavy emphasis on Turkey's relationship with the Western world.217 Since the end of the Cold War, Turkey's foreign relations have been characterized by relation diversification.218 In 1924, Turkey had a total of thirty-nine missions abroad.219 In 2002, Turkey only had 163 diplomatic missions abroad.220 Today, Turkey is represented by about 233 official missions throughout the world.221 According to the Lowy

Institute's Global Diplomacy Index "2017 Country Ranking," Turkey is the sixth country, only after United States, China, France, Russia, and Japan, in the number of worldwide representations.222 "In the year 2009 there were only 12 Turkish embassies in African countries (5 of them in North Africa)."223 Today, Turkey has some forty-four embassies in the continent and reportedly plans to open an embassy in every capital city in Africa.224 In its engagement with countries in Africa three Turkish institutions are proving very important: Tiurk Eximbank, Turkey's Foreign Economic Relations Board, and TIKA.

1. Tilrk Eximbank

Turk Eximbank was established in 1987 as Turkey's official

export credit agency.225 The main objectives of Tilrk Eximbank are

Tiurk Eximbank plays a very important role in supporting Turkey's efforts in Africa and is eyeing more international cooperation.227 Thus far, Tilrk Eximbank's loans are supporting a number of infrastructure and development projects throughout Africa.228 Countries in Africa are also turning to the bank for financing.229 In the 2008 Cooperation Framework for Turkey-Africa Partnership, the parties "welcome[d]

the willingness of the Turkish Eximbank as well as the Turkish government to provide loans for the financing of African development projects including continental infrastructure network in Africa."230

2. Foreign Economic Relations Board (DEIK)231

Established in 1986, the Foreign Economic Relations Board (DEIK) is responsible for leading and managing the foreign economic relations of the Turkish private sector.232 In executing its task, the DEIK focuses particularly on foreign trade, international investment and services, international construction activities, and logistics. One of tasks investment opportunities, work for Turkish businesses, and help with coordinating other business development activities.233 Pursuant to Law No. 6552 enacted on September 11, 2014, the DEIK has full responsibility of "managing the foreign economic relations of the Turkish private sector."234

inward and outward increasing exports

to explore towards

its

Through entities called

the DEIK establishes business-to-business cooperations with other countries.235 Suggesting a desire to deepen economic ties with Africa, the DEIK has opened Business Councils with its counterparts in thirty-one African countries.236

the Business Councils,

3. Turkish Cooperation and Coordination Agency (TIKA)

TIKA is a government department of the Prime Ministry of Turkey and is directly responsible for organizing the majority of Turkey's official development assistance to developing countries.237 Established in 1992 to as a technical aid organization under the Ministry of Foreign Affairs, to deal with some of the humanitarian

crisis resulting from the disintegration of the Soviet Union.238 On May 28, 1999, TIKA became an organization working under the Prime Ministry of the Republic of Turkey.239 Although the initial focus of TIKA was on the Turkic (Turkish-speaking) countries in Central Asia,240 the agency's focus has expanded considerably since the end of the Cold War.241 The number of TIKA's Programme Coordination Offices went from twelve in 2002, to twenty-five in 2011, thirty-three in 2012, and sixty-one today.242 Today, TIKA is considered an integral part of Turkish foreign policy and its focus extends well beyond Turkey's immediate neighborhood.243 Today, through its sixty-one Programme Coordination Offices located in is engaged in a wide variety of about fifty-nine countries, TIKA development cooperation activities in many countries around the world.244 Since 2002, Turkey's budget for development assistance has grown.245 In 2002, Turkey's development aid comprised about $85 million, by 2015, this amount increased to $3.9 billion.246

Of TIKA's sixty-one Programme Coordination Offices around the twenty-one offices are in Africa.247 "In 2008, TIKE [sic] world, that initiated an African Agricultural Development Programme" initially targeted thirteen countries in Africa.248 Today, TIKA's agricultural assistance program can be found in many countries in Africa including Somalia,249 Sudan,250 and Kenya.251 "TIKA's projects

and activities in Africa are designed to serve long-term purposes such as the development of social infrastructure, cultural co-operation and communication, the production sectors, economic infrastructure, and to a lesser extent provide support in urgent humanitarian crises."252

In conclusion, in its charm offensive in Africa, Turkey has used and is using every tool at its disposal. While traditional tools of foreign policy are important in Turkey-Africa relations, in its engagement with countries in Africa, Turkey is relying heavily on soft power.253

Since 2011, and with the exception of 2012 and 2015, Turkey has concluded at least two BITs every year with countries in Africa.254 This Part reviews BITs that Turkey has concluded with states in Africa that are publicly available and are in English.

A. Trends of Turkey-Africa BITs

Turkey has concluded BITs with twenty-eight countries in Africa.255 However, in total, Turkey has concluded thirty-one BITs with countries in the region:256 two each with Nigeria,257 Sudan,258 and Tunisia.259 In terms of trends, Turkey-Africa BITs share some similarities. First, a relatively large number of BITs that Turkey has with countries in Africa are not in force. Out of the thirty-one BITs concluded since 1999, only seven are in force (See Annex A and B).260 Second, Turkey-Africa BITs are fairly recent. A majority of TurkeyAfrica BITs were concluded only in the past ten years.261 Only four Turkey-Africa BITs were concluded prior to 2010-the BITs with Algeria (June 3, 1998),262 Sudan (December 19, 1999),263 Nigeria (October 8, 1996),264 and South Africa (June 23, 2000).265 Third, similar traditional BITs between developed countries and

developing countries, Turkey-Africa BITs address investor rights and protection and afford significant protections to investors.266

B. Investor Protection Elements in Turkey-Africa BITs

Bilateral investment treaties establish "minimum guarantees regarding the treatment of foreign investment."267 The G20 Guiding Principles for Global Investment Policymaking (2016) states that "[i]nvestment policies should provide legal certainty and strong protection to investors and investments, tangible and intangible."268 Very similar to the BITs that countries in Africa have concluded with Western nations, Turkey-Africa BITs are designed primarily to protect investors, and they provide investors with seven core benefits. First, the BITs require that investors and their "covered investments" are treated as favorably as the host state treats its own investors and their investments (national treatment).269 Second, the BITs require that investors and their covered investments are treated as favorably as the host state treats investors and investments from any third country (most favored nation treatment).270 Third, almost all TurkeyAfrica BITs guarantee investors absolute standard of treatment including "fair and equitable treatment" (FET), "full protection and or security" discriminatory measures.271 Fourth, the BITs establish "clear limits on the expropriation of investments and provide for payment of prompt, adequate, and effective compensation" in the event of an expropriation.272 Fifth, the BITs provide for the transferability of investment-related funds into and out of a host state without delay

unreasonable

against

(FPS),

and using a market rate of exchange.273 Sixth, the BITs guarantee investors and (MFN) treatment in the event of a loss due to war.274 Seventh, in the event of an investment-related dispute between an investor and a host state, the BITs give investors the right to international arbitration.275

investments most favored nation

to submit such disputes

1. National Treatment

The concept of national treatment has been defined as "a principle whereby a host country extends investors treatment that is at least as favourable as the treatment that it accords to national investors in like circumstances."276 Essentially, "the national treatment standard seeks to ensure a degree of competitive equality between national and foreign investors."277 The concern about the national treatment standard is that although it is extremely important to investors, it can reach deeply into the domestic policy space of host states. According to UNCTAD:

to foreign

National treatment protection is available in all Turkey-Africa BITs.279 Article 3(2) of the Turkey-Senegal BIT provides that once established, each Contracting Party shall accord to the investments, "treatment no like circumstances to investments of its investors.280 Article 3(2) of the Libya-Turkey BIT states: "[n]either Contracting Party shall in its tertitory subject investments or returns of investors of other Contracting Party to treatment less favorable than that which it accords to investments or returns of its own investors."281

that accorded

favourable

than

less

2. Most Favored Nation Treatment

The MFN treatment "ensures that a host country extends to the covered foreign investor and its investments, as applicable, treatment that is no less favourable than that which it accords to foreign investors of any third country."282 In the context of foreign investment, the MFN standard ensures an equality of competitive conditions between foreign investors of different nationalities seeking to set up an investment or operating that investment in a host country.283 The MFN treatment is provided for in all Turkey-Africa BITs.284

Article 4 of the Turkey-Rwanda BIT, states:

3. Absolute Standard of Treatment: Fair and Equitable Treatment, Full Protection and Security, and Nonimpairment

Almost all Turkey-Africa BITs guarantee investors absolute standard of treatment including fair and equitable treatment (FET), full protection and security, and protection against unreasonable or discriminatory measures.286

The fair and equitable treatment standard is available in almost all the BITs examined, including Turkey's BIT with Cameroon,287 Ethiopia,288 Gabon,289 Gambia,290 Senegal,29' and Kenya.292 Article 2(2) of Libya-Turkey BIT states that "[i]nvestments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment."293 The fair and equitable treatment standard is found in the preamble of the Turkey-Ethiopia BIT as well as in the text of the treaty.294 Article 2(2) of the Turkey-Morocco BIT simply states that "[e]ach Contracting party shall ensure fair and equitable treatment."295

The full protection and security guarantee is found in numerous Turkey-Africa BITs including those with Cameroon,296 Ethiopia,297 Gabon,298 Gambia,299 and Kenya.300 Article 2(2) of Libya-Turkey BIT states that "[i]nvestments of investors of each Contracting Party ... shall enjoy full protection in the territory of the other Contracting Party."30' Article 2(2) of the Turkey-Morocco BIT provides: "Each Contracting party shall . ..subject to the strictly necessary measures to maintain the public order provide full protection and security for investments of investors of the other Contracting Party."302

against

guarantee

of protection

or discriminatory measures is found in many of the BITs reviewed, those between Turkey and Cameroon,303 Ethiopia,304 including Gabon,305 Gambia,306 and Kenya.307 The second sentence of Article 2(2) in the Libya-Turkey BIT states that: "[n]either Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension,

unreasonable

or disposal of such investments."308 The standard is worded a bit in Article 2(2) of the Turkey-Morocco BIT, which differently impair by discriminatory stipulates, "[c]ontracting Party shall measures the management, maintenance, use, enjoyment or disposal of investments in its territory of investors of other Contracting Party."309

Article 3 of the Turkey-Rwanda BIT states:

4. Protection Against Expropriation

Under customary international law, "states have a sovereign through take property held by nationals or aliens to right nationalization or expropriation for economic, political, social, or other reasons."311 Not every expropriation triggers the international responsibility of a state; a distinction is made between lawful and unlawful expropriation. To be considered lawful, international law requires that four conditions are met: an investment asset has to be in taken for a public purpose, on a nondiscriminatory basis, accordance with due process of law, and the taking must be accompanied by compensation.312 Over the years, particularly during the first and second phase of mass expropriation in the 1960s and 1970s,313 the exercise by states of the right to expropriate investment triggered conflicts, debates, and disagreements, and property

prompted states to use BITs to clarify the rights and duties of host states vis-&-vis those of foreign investors.314

Turkey-Africa BITs do not prohibit expropriation but rather impose strict limits on the right of a host state to expropriate an investment. In general, expropriation must be for a public purpose, must be on a nondiscriminatory basis, and must be against the payment of compensation.315

Regarding compensation that must be paid when an investment is expropriated, some BITs call for prompt, adequate, and effective compensation316 and some do not.317 Some BITs provide that expropriation must be in accordance with legal due process and others do not.318 Consider the following examples:

Article 4 and Expropriation

Turkey-Senegal BIT Turkey-Libya BIT Turkey-Sudan BIT Article 5 Article 3 Expropriation Expropriation Compensation Compendation 1. Investments shall 1. Investments shall 1. Investments shall not be expropriated, not be expropriated, not be expropriated, nationalized or subject, directly or subject, directly or indirectly, to indirectly, to measures of similar measures of similar measures of similar effects (hereinafter effects except for a effects except for a referred as public purpose, in a public purpose, in a

subject, directly or indirectly, to

or nationalized

or nationalized

5. Right to Transfer Capital

Transfer of funds provisions constitute one of the core provisions in international investment agreements.322 Investors need assurance that they "will be able to enjoy the financial benefits of a successful investment."323 Consequently, transfer provisions typically "set forth a host country's obligation to allow free flow of all investment related transactions, guaranteeing the transfer, conversion and liquidation of any form of capital, proceeds, payments, profits and others without restrains."324 Transfer provisions also define the nature of transfers covered, the nature of the obligation on host states, and any permissible exceptions and derogations.

Turkey-Africa BITs guarantee investors the right to transfer capital out of the host state. For example, Article IV of the TurkeyEgypt BIT declares that "[e]ach Party shall permit in good faith all transfers related to an investment to be made freely and without unreasonable delay into and out of its territory."325 Article 6(1) of the Turkey-Morocco BIT stipulates that "[e]ach Contracting Party shall permit to investors of the other Contracting Party the free transfer,

after discharge of fiscal obligations, of their assets invested."326 Article IV(1) of the Turkey-Tunisia BIT provides that "[s]ubject to the laws and regulations each Party shall permit all transfers related to an investment to be made freely and without unreasonable delay into and out of its territory."327

6. Transparency Obligations

In investment treaties, transparency "denotes a state of affairs in which the participants in the investment process are able to obtain sufficient information from each other in order to make informed decisions and meet obligations and commitments."328 Generally, the aim of transparency provisions is "to enhance the predictability and stability of the investment relationship and to provide a check against circumvention and evasion of obligations, by resort to covert or indirect means."329 The 2012 United States Model BIT incorporates transparency as does Canada's Model Foreign Investment Protection Act (FIPA).331

standards,330

Transparency provisions are not common in Turkey-Africa BITs. However, at least one BIT (Turkey-Rwanda) obliges the contracting states to be transparent.332 Article 13 of the Turkey-Rwanda BIT stipulates:

7. Investor-State Dispute Settlement

state measures

tribunals. Increasingly,

Traditionally, BITs allow investors to bypass the domestic courts of host states by giving them rights to initiate claims against host investors are states with international activating BITs by bringing arbitral claims to challenge a broad range of actions by host states.334 Claims have been brought challenging the host environment,336 taxation,337 and health.338 African countries are not to international investment arbitration, and a growing immune number of countries in the region are just now facing their first (known) claims. The Republic of Benin (Benin) faced its first international investment arbitration case in 2017,339 the Republic of Madagascar (Madagascar) in 2013,340 and the Republic of Equatorial Guinea (Equatorial Guinea) in 2012.341

to drinking water,335

relating

Turkey-Africa BITs all provide for investor-state dispute settlement (ISDS). Examples can be seen with the BITs between Turkey and Algeria,342 Cameroon,343 Ethiopia,344 and Gambia.345

Economic factors are very important in Turkey's foreign policy, and this is reflected in the number of BITs Turkey has concluded in the past decade.346 Turkey's BITs are conceived primarily "as a valuable tool to promote and protect foreign investment."347 As Turkey's Ministry of Trade noted, "[t]he main purposes of Turkey's BIT program are to increase the bilateral flows of capital and technology, and provide protection to the investments of international investors in Turkey [as] well as Turkish investors abroad against non-commercial risks in the framework of international law."348

C. Sustainable Development Elements in Turkey-African BITs

International investment agreements were originally designed primarily to protect investors and foreign investments. Today, "[a] shared view has emerged on the necessity to ensure that the international investment treaty regime works for all stakeholders" and advances the goals of sustainable development. 349 While recognizing that investment policies should protect both investors and investments, the G20 Guiding Principles state unequivocally that "[i]nvestment policies and other policies that impact on investment should be .consistent with the objectives of sustainable development and inclusive growth."350

Very similar to many BITs that countries

in Africa have concluded with Western nations,351 Turkey-Africa BITs do not directly address sustainable development.352 However, a growing number of Turkey-Africa BITs, particularly recent agreements, appear to support sustainable development goals to the extent that they appear to be designed to respect the right of host states to regulate in the public interest.353 First, Turkey-Africa economic

development is mentioned in the preamble as an expected outcome of foreign direct investment in an increasing number of Turkey-Africa BITs.354 Increasingly, contracting parties affirm, in the preamble, that treaty objectives can be achieved without relaxing health, safety, and environmental measures as well as internationally recognized labor rights.355 Second, treaty protection typically extends only to investments made in accordance with the host state's domestic laws.356 Third, under almost all Turkey-Africa BITs, contracting parties retain the right to admit only investments that are in compliance with domestic law.357 Fourth, a growing number of Turkey-Africa BITs contain a "General Exception" clause somewhat akin to Article XX of the General Agreement on Tariffs and Trade.358

Fifth, in a growing number of BITs, contracting parties make a distinction between indirect expropriation, which is impermissible and the so-called regulatory takings, which are permissible.359 Thus, "[n]on-discriminatory legal measures designed and applied to protect legitimate public welfare objectives, such as health, safety, and environment," are increasingly explicitly protected.360 Sixth, the "no lowering of standards" clause is beginning to appear in Turkey-Africa BITs.361 With the "no lowering of standards" clause, contracting parties declare their expectation that they will not encourage foreign investment by relaxing domestic health, safety, and environmental measures.362 Seventh, a nonderogation clause is found in a few (older) BITs and generally provides that the agreements shall not derogate from certain obligations, including international legal obligations, assumed by the contracting parties.363

1. Economic Development in the Preamble

Economic development and improvement of living standards are mentioned as a treaty objective in the preamble of Turkey's BITs with Cameroon,364 Egypt,365 Ethiopia,366 Gabon,367 Gambia,368 Kenya,369 Rwanda,370 and Nigeria.371 Economic development does not appear as a treaty objective in some BITs, however.372 In the preamble to a

number of BITs (e.g., the Turkey-Senegal BIT,373 the TurkeyRwanda BIT,374 and the Turkey-Kenya BIT375), contracting parties state their understanding that the treaty "objectives can be achieved without relaxing health, safety, and environmental measures of labor general application, as well as internationally recognized rights."376 In the preamble to the Turkey-Kenya BIT, contracting parties while

were also

There is a noticeable difference between the treaty objectives listed in the preamble to the Turkey-Morocco BIT (1997) and the treaty objectives identified in the preamble to the Turkey-Cameroon which is a more recent agreement. The preambles to the two agreements provide as follows:

Turkey-Cameroon BIT Preamble

Turkey-Morocco BIT (1997) Preamble The Government of the Republic The Government of the Republic of Turkey and the Government of of Turkey and The Government of the Republic of Cameroon, the Kingdom to as "the hereinafter referred "Contracting Parties,"

to as the hereinafter referred Contracting Parties,"

of Morocco

(2012)

to create

greater to promote favourable Desiring Desiring cooperation between economic conditions for greater economic them, particularly with respect to cooperation between them and in investment by investors of one investments particular by investors of one State in the Contracting Party in the territory territory of the other State;

of the other Contracting Party;

Recognising

importance of Recognizing that agreement upon

reciprocal

the encouragement and protection of investments and its contribution to stimulate inflows of capital and business initiative increase prosperity in both States;

the treatment to be accorded such investment will stimulate the flow of capital and technology and the economic development of the Contracting Parties;

Agreeing that fair and equitable treatment is desirable in order to maintain a stable framework for investment and to maximizing effective utilization of and improve living standards;

contribute

resources

economic

will

Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights; and

Having resolved to conclude an agreement concerning the reciprocal promotion and protection of investments;

2. Scope of Application Clause

In BITs, the scope of application clause is used to define the scope of the temporal and substantive scope of the treaty. Generally, these clauses address whether or not a treaty is retroactive but can also be used to limit the scope of a treaty in other ways.380 In Turkey-

Africa BITs, the scope of application clause tends to address the temporal scope of the agreements and nothing else. Essentially, contracting parties are not making any effort to limit the subject matter or geographic scope of the agreements. However, by limiting treaty protection to only those investments made in accordance with domestic law of a host state, contracting states retain some control over foreign investors and foreign investments and can introduce sustainable development objectives and criteria into their domestic law. For example, Article 12 of the Turkey-Kenya BIT states: "This in the territory of one Agreement shall apply to investments Contracting Party, made in accordance with its national laws and regulations, by investors of the other Contracting Party, whether prior to, or after the entry into force of the present Agreement."38 A similar provision is found in other BITs including the TurkeyCameroon BIT (Article 2),382 the Turkey-Rwanda BIT (Article 2), and the Turkey-Gabon BIT (Article 2).3M Article 2 of the TurkeyRwanda BIT reads:

3. Postestablishment Rights: the Right of Host State to Restrict Admission of Investor/Investments

In BIT practice, "the issue of admission and establishment refers to the entry of investments of investors of a contracting party into the territory of another contracting party."386 Under customary international law, countries "have the right to regulate the admission of foreign investors and their investments in their territories."387 Historically, "most countries refrain from granting foreign nationals in their economies," as such an unrestricted right unrestricted access can undermine their economic and security

invest

investment subject

interests.388 In BIT practice, two basic models are used.389 The "admission clause" model makes "the admission and establishment of foreign laws of the host country."390 The "right of establishment" model grants foreign investors a right of establishment, but "not in an absolute manner," meaning that the entry of foreign investors and investors is not typically subject to domestic laws and regulations.39i

the domestic

Turkey-Africa BITs adopt the admission clause model. In all Turkey-Africa BITs, the host state retains the right to admit foreign investors based on their domestic law.392 Article 3 of the TurkeyKenya BIT is titled "Treatment of Investment" and essentially obliges each contracting party to admit investments by investors of the other contracting party in accordance with its domestic laws.393 Article 3 states: "Each Contracting Party shall admit territory investments by investors of the other Contracting Party on a basis no less favourable to investments of investors of any third State, and in accordance with its laws and regulations."394 In the same vein, Article 4(1) of the TurkeyCameron BIT provides, "[e]ach Contracting Party shall admit in its territory investments on a basis no less favourable than that accorded in like circumstances to investments of investors of any third State, within the framework of its laws and regulations."395

like circumstances

that accorded

than

its

4. General Exception

In the past, "general exceptions" clauses were not common in BITs but are now beginning to appear in a growing number of investment treaties.396 In principle, a general exceptions clause can provide ample flexibility for host states to regulate in the public interest because they are generally designed to "relieve host states from treaty liability for good faith measures taken to pursue public welfare objectives."397 In many investment treaties, "the general

exception clause is very closely modeled on, or incorporates the general exception provisions in Article XX of the General Agreement on Tariffs and Trade (GATT)."398 Typically, general exception clauses share three important elements. First, "[a]n exhaustive list of permissible policy objectives; for example, the protection of human, animal, or plant life or health, or the conservation of natural resources."399 Second, "[a] nexus requirement, denoting the required link between a state measure and a permissible objective; frequently used nexus requirements include 'necessary for,' 'relating to,' and 'designed and applied for."'400 Third, "[a] prohibition of discriminatory or arbitrary application."401 Most general exception clauses state that nothing in the agreements can or shall be construed to prevent a or enforcing contracting party nondiscriminatory legal measures that are designed and applied to promote public interest objectives in the areas of public health and environmental protection.402

adopting, maintaining,

A general exception clause is found in several of the BITs that Turkey has concluded with African countries including the BITs between Turkey and Tanzania,403 Cameroon,404 Gabon,405 Gambia,406 Kenya,407 Nigeria,408 and Rwanda.409 General exception clauses are absent from most of the older treaties that Turkey has with countries in Africa such as Turkey's BITs with Algeria and Ethiopia.410 An example of a general exception clause from Article 5 of the TurkeyRwanda BIT is as follows:

A modest version of the general exception clause is found in Article IX of the Turkey-Tunisia BIT which provides that "[t]his agreement shall not preclude the application by either Party of measures necessary for the maintenance of public order and morals, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests."412

5. Limits on Expropriation

raises

Expropriation

significant international investment law. Investors need assurance that their property is protected. However, unless it is carefully drafted, the expropriation clause in an international investment agreement can expose a host state to considerable legal liability. In many investment arbitration cases involving African states, claimants successfully asserted claims

issues

of direct and indirect expropriation.413 Ideally, an expropriation clause should be drafted with a view to accommodating the concerns of foreign investors as well as national policy makers. The goal should be to afford investors meaningful protection and at the same time to liability for nondiscriminatory public interest limit exposure regulation.

All Turkey-Africa BITs protect investors and their investment from unlawful and discriminatory expropriation.414 However, a growing number of Turkey-Africa BITs provide policy space for a host state by limiting the types of measures that constitute indirect expropriation. For example, Article 6(2) of the Turkey-Rwanda BIT explicitly states that "[n]on-discriminatory legal measures designed and applied to protect legitimate public welfare objectives, such as indirect health, expropriation."415 A similar provision can be found in Turkey's BITs with Gabon,416 Gambia,417 and Nigeria.418

safety and environment,

do not constitute

6. The "Not Lowering of Standards" Clause

for corporate

Turkey-Africa BITs do not provide

social responsibility but most contain the "not lowering of standards" to clause.419 The not lowering of standards clause discourage states from relaxing environmental and labor standards to attract investment. In a growing number of agreements, contracting parties declare their expectation that protecting foreign investment "can be achieved without relaxing health, safety, and environmental measures and internationally recognized labor rights."420 Although typically found in the preamble, this not lowering of standards clause is found in the body of some BITs.421 For example, Article 4 of the Turkey-Ethiopia BIT provides:

is designed

7. Nonderogation Clause

In a few BITs between Turkey and some countries in Africa, contracting parties explicitly state that the agreements do not derogate legal obligations, laws and regulations, administrative practices or procedures, or the administrative or adjudicatory decisions of contracting states. An example is seen below:

some obligations

Surprisingly, the nonderogation clause appears in the older BITs that Turkey has with countries in Africa (e.g., the Turkey-Algeria BIT424 and the Turkey-Egypt BIT seen above 425) but not in more recent agreements (e.g., the Turkey-Rwanda BIT).426 One possible explanation for why the nonderogation clause does not feature in more recent BITs involving Tyekry may simply be that it has been

replaced by the "general exceptions" clause, which arguably affords more policy space to host states.427

8. Limits on Investor Rights and Guarantees

In some Turkey-Africa BITs, particularly recent agreements, the host country's right to regulate is preserved through carve-out clauses to that qualify and/or limit the rights and privileges afforded investors.428 For example, in most of the BITs, the right of investors to transfer capital in and out of a host state is conditioned on the investor fulfilling all tax obligations.429 Article 7(1) of the TurkeyKenya BIT provides that "[u]pon fulfillment of all tax obligations, each Contracting Party shall permit in good faith all transfers, related to an investment, to be made freely and without delay into and out of its territory. "In addition, Article 7 states the host state is allowed to limit transfers of capital in the event of a serious balance of payment crisis. Article 8(3) of the Turkey-Cameron BIT stipulates: in exceptional circumstances, payments and capital "Where, movements cause or threaten to cause serious balance of payments restrict difficulties, each Contracting Party may transfers, provided that such restrictions are imposed on a nondiscriminatory and in good faith basis."430

temporarily

In conclusion,

is not explicitly sustainable development mentioned as a treaty objective in most of the BITs that Turkey has concluded with countries in Africa and most of the agreements do not to promote sustainable contain provisions specifically designed development in a host state.431 Moreover, none of the BITs reviewed oblige contracting parties to respect human rights or protect the investment.432 However, a growing number of Turkey-Africa BITs provide some policy space for host states to regulate in the public

interest and advance sustainable development goals.433 There is a growing realization that although economic agreements create economic opportunities for states, "they can also affect the domestic policy space of Governments," and make it extremely difficult for states rights and environmental legislation.434

implement human

fully

treaties on human

BITs are not benign policy instruments. 43 BITs can chill regulatory action and can expose host states to considerable legal risks and to legal claims before international investment tribunals.436 Questions are increasingly being asked about impact of investment the environment, and sustainable development more generally.437 Increasingly, states are urged to "ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection."438 According to Principle 9 of the United Nations Guiding Principles on Business and Human Rights, "[s]tates should maintain adequate domestic policy space their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts."439

to meet

rights,

This begs the question, based on the evolving best practices of states is anything and developments missing from Turkey-Africa BITs? This Part analyzes shortcomings in Turkey-Africa BITs and discusses options for countries in Africa that wish to reform their BITs with Turkey.

in international

law, generally,

A. Turkey-Africa BITs: Missing Elements

Explicit commitments to sustainable development, provisions addressing corporate social responsibility and the obligations of investors, and policy space for host states are missing from TurkeyAfrica BITs, particularly in older BITs.

1. Sustainable Development Not Explicitly Mentioned as a Treaty Objective

Economic

that meets

"sustainable

the needs of

development, but not

economic development," appears in most of the BITs that Turkey has with countries in Africa.440 Sustainable development has been defined as the present, without "development compromising the ability of future generations to meet their own needs."441 At its core, sustainable development "is an approach to development that looks to balance different, and often competing, social and needs against an awareness of the environmental, economic limitations we face as a society."442 Sustainability is at the very core of the 2030 Agenda for Sustainable Development, the leading global framework for international cooperation today.443

Although health, safety, and environmental measures are mentioned in the preamble to some of the BITs that Turkey has with countries in Africa, sustainable development is not explicitly listed as treaty objective.444 Rather, contracting parties express an a expectation that the treaty objective (investor protection) can be

achieved without lowering human rights, labor, and environmental standards.445

reference

investment treaty

This lack of explicit reference to sustainable development in the preambles to Turkey-Africa BITs is concerning for three reasons. First, sustainable development is driving investment treaty reform today and explicit to sustainable development can potentially affect how an is construed and interpreted.446 Although preambles do not directly create rights and obligations, under Article 31(2) of the Vienna Convention on the Law of Treaties, preambles are considered part of treaties for purposes of interpretation.447 Thus, mentioning sustainable development, even in the preamble to a BIT, could potentially shape the meaning and scope of a BIT. Second, in a growing number of HAs, treaty parties articulate the goals of sustainable development and explicitly reaffirm the right of host states to regulate in the public interest. For example, in the preamble to the Comprehensive and Economic Trade Agreement (CETA), a trade deal between the EU and Canada, contracting parties: "RECOGNIS[ED] the importance of international security, democracy, human rights and the rule of law for the development of international trade and economic cooperation" and "REAFFIRM[ED] commitment sustainable development of international trade in such a way as to contribute to sustainable development in its economic, social and environmental dimensions."448 In the preamble to the Brazil-United Arab Emirates BIT (2019), contracting parties "[r]ecogniz[ed] the essential role of sustainable development."449 Third, investment increasingly continental policy instruments in Africa stress the importance of sustainable development. In the preamble to the Draft PAIC, African Union member states "RECOGNIZ[ED] their right to regulate all the aspects relating their territories with a view to meeting national policy objectives and to promoting sustainable development objectives."450 Article 22(3) of the

investments within

in promoting

to promote

to the Draft PAIC stipulates that "[i]nvestors shall contribute economic, social and environmental progress with a view to achieving sustainable development of host States."451

2. Corporate Social Responsibility Ignored

None of the BITs that Turkey has concluded with countries responsibility or corporate social explicitly address corporate accountability and none impose specific obligations on investors. In this regard, Turkey-Africa BITs are no different from the BITs that African countries have with Western countries.452

The fact that Turkey-Africa BITs do not address corporate social responsibility or investor liability is of concern for a number of reasons. The absence of corporate social responsibility clauses from is at odds with regional and continental Turkey-Africa BITs standards in Africa.453 Chapter 4 of the 2016 Draft Pan African Investment Code (Draft PAIC), a nonbinding comprehensive guiding instrument on investment for all African Union member states, is titled "Investor Obligation."454 Chapter 4 of the Draft PAIC addresses a number of important topics including, "Framework for Corporate Governance" (Article 19), "Socio-political Obligations" (Article 20), "Bribery" (Article 21), "Corporate Social Responsibility" (Article 22), "Obligations as to the use of Natural Resources" (Article 23), and "Business Ethics and Human Rights" (Article 24). Article 22 of the Draft PAIC states that investors "shall abide by the laws, regulations, administrative guidelines and policies of the host State;"455 "shall, in pursuit of their economic objectives, ensure that they do not conflict with the social and economic development objectives of host States and shall be sensitive to such objectives;"456 and "shall contribute to the economic, social and environmental progress with a view to achieving sustainable development of the host State."457 Article 23 of the Draft PAIC is focused on natural resource extraction and declares that investors "shall not exploit or use local natural resources to the

detriment of the rights and interests of the host State"458 and "shall respect rights of local populations, and avoid land grabbing practices vis-A-vis local communities."459 Article 24 lists principles that should govern compliance by investors with business ethics and human rights.460 Principles listed include inter alia: support and respect the protection of internationally recognized human rights;461 eliminate all forms of forced and compulsory labor, including the effective abolition of child labor;462 and ensure equitable sharing of wealth derived from investments.463

investors and

The absence of explicit reference to corporate social responsibility in Turkey-Africa BITs is also at odds with the evolving best practices of states. References to corporate social responsibility are found in a growing number of international investment treaties and Model BITs.464 Chapter III of India's Model BIT is titled "Investor, Investment and Home State Obligations" and "prescribes the minimum obligations investments for responsible business conduct."465 The chapter addresses a number of topics (Article 9), "Disclosure" (Article 10), "Taxation" (Article 11), and "Compliance with Law of Host State" (Article 12).466 The objective of the chapter is "to ensure that the conduct, management and operations of Investors and their Investments are consistent with the Law of the Host State, and enhance the contribution of Investments to inclusive growth and sustainable development of the Host State."467 Corporate social responsibility clauses are also found in investment treaties involving a growing number of countries including Brazil,468 Canada,469 and Australia.470

"Obligation against Corruption"

The omission of direct reference to corporate social responsibility in Turkey-Africa BITs is also troubling because as members of the United Nations and members of regional organizations, such as the European Union and the African Union, Turkey and countries in Africa have made commitments to address the growing challenge of business and human rights.471 On April 16, 2014, the Committee of Ministers of the Council of Europe adopted the Declaration of the Committee of Ministers supporting the UN Guiding Principles.472 In the Committee of Ministers adopted Recommendation 2016, Business CM/Rec(2016)3 (Recommendation).473 On the whole, the Recommendation offers guidance "to assist states in preventing and remedying human rights violations by business enterprises."474 The Recommendation requires states to consider possible human rights impacts of the trade and investment agreements that they conclude.475 Paragraph 23 of the Recommendation states:

Human

Rights

3. Lack of Policy Space in "Old-Generation" BITs

There

is widespread concern that international investment agreements unduly restrict the host state's right to regulate in the public interest.477 This concern is particularly directed at treaties concluded before 2010 before sustainable development-oriented reform "entered investment policymaking."478

the mainstream of

Although most of Turkey's BITs with countries in Africa are of fairly recent origin (concluded after 2010),479 some can be considered "old-generation," agreements having been concluded between 19852010.480 Among the old-generation Africa-Turkey BITs are Turkey's BITs with Egypt (1998),483 Ethiopia (2000),484 South Africa (2000),485 and Libya (2009).486 Most of the old-generation BITs lack the policy space found in more recent agreements. A good example is the Turkey-Ethiopia BIT (2005).487 The Turkey-Ethiopia BIT does not have a "general exception" clause and does not provide exceptions to most of the obligations on host states.488 Article V of the Turkey-Ethiopia BIT provides for the right of investors to repatriate capital but does not make this right contingent upon fulfillment of tax obligations and does not provide policy space for a host state to address a balance of payment crisis should the need arise.489 Compare the "Repatriation and Transfer"

clause of the Turkey-Gabon BIT (2012) to that in the Turkey-Egypt BIT (1997):490

Turkey-Egypt BIT Article 4 Repatriation and Transfer 1. Each Party shall permit in good faith all transfers related to an investment to be made freely and without unreasonable delay into and out of its territory such transfers include:

2. Transfers shall be made in the convertible currency in which the investment has been made or in any convertible currency at the rate of exchange in force in the the date of host country at transfer, unless otherwise agreed by the investor and the hosting Party.

A similar problem is found in the provision dealing with expropriation. Missing from the old-generation BITs are safeguards designed to limit the otherwise broad scope of the treaties and immunize a host state's regulatory measures taken in the public

interest.491 Specifically, the Turkey-Ethiopia BIT, does not have a provision comparable to Article 6(2) of the Turkey-Gabon BIT which state:

nationalized

shall not be

or expropriated,

Turkey-Gabon BIT (2012) Article 6 and Expropriation

Turkey-Ethiopia BIT (2000) Article IV Expropriation Compensation 1. shall not be expropriated, or subject, directly or indirectly, to subject, directly or indirectly, to measures of similar effects except measures effects for a public purpose, in a nonas discriminatory manner, upon expropriation) except for a public payment of prompt, adequate purpose, in a non-discriminatory and effective compensation, and manner, of in accordance with due process of prompt, adequate and effective law and the general principles of compensation, and in accordance treatment provided for in the with due process of law and the Article III of this Agreement.492 general principles of treatment provided for in Article 4 of this Agreement.

similar referred

nationalized

(hereinafter

payment

upon

2. Non-discriminatory legal measures designed and applied to protect legitimate public welfare objectives, such as health, safety and not constitute indirect cxropeation.

environment,

do

Old-generation BITS are not benign legal instruments that contracting states can simply ignore. UNCTAD is right in its warning that "old treaties bite" and pose legal risks for host states.494 At the end of 2017, almost every known treaty-based investment arbitration claim treaties concluded before 2000.495 Congo v. Mitchell was based on the 1984

involving African states was

filed pursuant

BIT between the United States and the Democratic Republic of Congo.496 Wena Hotels Ltd. v. Arab Republic of Egypt was based on the United Kingdom-Egypt BIT of 1975497 and Middle East Cement Shipping and Handling Co. v. Arab Republic of Egypt was based on the Egypt-Greece BIT of 1993.498

4. Legal Minefields Arising from Broad and Vague Obligations

In almost every Turkey-Africa BIT, the obligations imposed on contracting parties are vaguely worded and ill-defined. Lack of clarity in treaty obligations exposes host states to considerable legal risks and can create regulatory chill.499 As UNCTAD notes, broad and vague formulation of investment treaty provisions "has generated unanticipated (and at times inconsistent) interpretations by arbitral tribunals, and has resulted in a lack of predictability as to what from [international States."500

agreements]

actually

require

In almost all the BITs reviewed, absolute guarantees, such as to the guarantee of "fair and equitable treatment," "full protection and security," and protection against "unreasonable or discriminatory measures" are not defined nor is their scope limited.501 In some of the BITs (e.g., the Turkey-Gabon BIT) an attempt is made to limit the scope of the guarantees by linking them to international minimum standards of protection, but this is not found in most of the other BITs (e.g., the Turkey-Ethiopia BIT). These examples are seen below:

Turkey-Gabon BIT (2013) Article 3 Investments of investors of each Contracting Party shall at all Party shall at all and times be accorded treatment in accorded accordance with law minimum

Turkey-Ethiopia BIT (2005) Article II (2) Investments of investors of each times be equitable international treatment and shall enjoy full standard of protection in the territory of the

fair

fair and other Party.503 and

Overall, when it comes to clarifying treaty obligations, TurkeyAfrica BITs are out of step with a growing number of recent BITs that other countries are concluding. Increasingly, states are taking extra care to reduce exposure to legal risks by defining their obligations carefully and circumscribing those obligations when appropriate.

Regarding the FET standard, one option is for states to qualify the standard by deference to the minimum standard of treatment under customary international law; this approach is found in a growing number of treaties.504 Second, in some BITs, contracting parties clarify the meaning and scope of the FET standard by providing an open-ended list of the types of measures that are prohibited.505 Third, in some recent treaties, contracting parties clarify the FET standard with an exhaustive "closed list" of the protection to be accorded investors.506 Fourth, a growing number of investment treaties contracting parties include a clause that provides for a review, upon request, of the content and scope of the FET standard.507 Fifth, some states are choosing to provide a list of factors that should be taken into account in determining if the FET standard has been violated.508 For example, Article 2.4(3) of the EU-Singapore IPA states that

Finally, although still relatively rare, some BITs omit the FET standard altogether.509 the contracting parties are explicit and clear about their intention to exclude the FET standard and replace it with a list of prohibited conduct. Article 4 of the Brazil-UAE BIT provides as follows:

the Brazil-UAE BIT

(2019),

A comparison of the FET clause in the Kazakhstan-Singapore BIT (2018) and that in the Turkey-Rwanda BIT (2016) highlights some of the deficiencies in the BITs that Turkey has with countries in Africa:

Turkey-Rwanda BIT (2016) Article 3 Promotion and Protection of Article 3 Investment

Kazakhstan-Singapore (2018)

Promotion and Protection of Investment

2. Investments of investors of Each Party each Contracting Party shall at

to investments of investors of the

shall accord

all times be accorded treatment in accordance with international law minimum standard of treatment, fair and equitable full and protection and security in the territory of the other Contracting Party. Neither Contracting Party shall the management, maintenance, use, operation, enjoyment, extension, sale, liquidation or disposal of such by unreasonable or discriminatory measures.511

in any way

and security

State of the other Party fair and full treatment equitable protection in accordance with customary international law. The obligation to provide 'fair and equitable treatment" includes the obligation not to deny justice in or administrative adjudicatory proceedings.

criminal,

civil

The obligation to provide 'full protection and security" requires each Party to provide the level of police protection required under customary international law.

"fair

concepts

and The equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required under customary international law and do not create additional substantive rights.

a breach

3. A determination that there has been another provision of this Agreement, or of a international agreement, does not establish that there has been a breach of this Article.512

separate

Turkey-Rwanda BIT (2016) Article 3 Promotion and Protection of Article 3 Investment

Kazakhstan-Singapore (2018)

2. Investments of investors of each Contracting Party shall at all times be accorded treatment in accordance with international standard of law minimum fair and treatment, full and equitable in the protection and security territory of the other Contracting Party. Neither Contracting Party the shall management, maintenance, use, operation, enjoyment, extension, liquidation or disposal of sale, by such unreasonable or discriminatory measures.513

in any way

shall accord

treatment and security

Promotion and Protection of Investment to Each Party investments of investors of the State of the other Party fair and full equitable in protection customary accordance with international law. The obligation to provide "fair and equitable treatment" includes the obligation not to deny justice or in adjudicatory administrative proceedings.

criminal,

civil

The obligation to provide "full protection and security" requires each Party to provide the level of police protection required under customary international law.

"fair

concepts

and The treatment" and "full equitable protection and security" do not require treatment in addition to or beyond that which is required international under customary law and do not create additional substantive rights.

breach

3. A determination that there has another been provision of this Agreement, or of international a agreement, does not establish that there has been a breach of this Article.514

separate

5. Variations among Turkey-Africa BITs

Turkey-Africa BITs are not all created equal in the sense that some afford more policy space for host states than others. Variations can be found even as between relatively recent BITs that Turkey has concluded with countries in Africa. Compare, for example, Article 8 of the Turkey-Rwanda BIT ("Repatriation and Transfer")515 with Article 7 of the Turkey-Kenya BIT ("Repatriation and Transfer").516 In both agreements, the right of investors to repatriate capital is contingent upon the fulfillment of all tax obligations.517 In both agreements, contracting states reserve the right to temporarily restrict capital transfers "where, in exceptional circumstances, payments and capital movements cause or threaten to cause serious balance of payments difficulties."518 However, a very important provision in the Turkey-Rwanda BIT (Article 8(4 is completely absent from the Turkey-Kenya BIT-this is the provision that allows a host state to prevent a transfer of capital through the equitable and good faith application of its domestic laws.519 Article 8(4) of the Turkey-Rwanda BIT provides:

6. Development Dimension not Prioritized

Turkey-Africa BITs do not address development concerns in a meaningful or coherent fashion. To the extent that development dimension is addressed, it is only addressed in the preamble through hortatory statements. In some BITs, preambular paragraphs typically refer to the promotion of development as one of the main objectives of the agreement. Only one BIT, the Turkey-Gabon BIT, addresses the issue of technology transfer, and it merely calls on contracting parties to encourage technology transfer.521 Although in the past, BITs

focused almost exclusively on investment protection and rarely addressed issues of concern to host states, this is now changing. Increasingly BITs address a host of issues not traditionally found in investment agreements, such as prudential measures,522 balance of payment,523 denial of benefits,524 temporary safeguards,525 intellectual property rights (IPRs),526 rule of law, consumer protection, and corruption.527

Addressed in the Draft PAIC, but not in most of the BITs topics such as:

between Turkey and countries

in Africa, are

"Competition Law and Policy" (Article 28); "Transfer of Technology" (Article 29); "Environment and Technologies" (Article 30); "Human Resource Development" (Article 36); and "Consumer Protection" (Article 40).528 The Netherlands Model Investment Agreement addresses a host of issues not traditionally found in BITs including, Rule of Law (Article 5) and Sustainable Development (Article 6).529

7. The Right to Regulate Is Not Affirmed Explicitly

BITs establish rights for investors and not corresponding rights for states or obligations investors. By establishing broad protection for investors, BITs "inevitably place limits on contracting parties' sovereignty in domestic policymaking."530 To avoid this problem, in a growing number of recent treaties, contracting states explicitly affirm their respective rights to regulate in the public interest. Article 23 of the Morocco-Turkey BIT (2016) is titled "Right of State to Regulate," and Article 23(1) provides in part that "the Host State has the right to take regulatory or other measures to ensure that development in its territory is consistent with the goals and principles of sustainable development, and with other legitimate social and economic policy objectives."531 Article 23(3) states further that "[flor greater certainly, non-discriminatory measures taken by a State Party to comply with its international obligations under other treaties shall not constitute a breach of this Agreement."532

Although in Turkey-Africa BITs, an attempt is made to respect domestic regulatory space, the BITs do not explicitly acknowledge the right of states to regulate in the public interest.533 In this regard, the

BITs examined are at odds with continental policy instruments and with evolving best practices. In the Draft PAIC, African Union their right to regulate all the Member States, "RECOGNIZ[ED] aspects relating to investments within their territories."534 In the preamble to the Agreement Establishing the African Continental Free Trade Agreement that went into effect on May 30, 2019, Member States "REAFFIRM[ED] the right of State Parties to regulate within their territories and the State Parties' flexibility to achieve legitimate safety, policy objectives environment, public morals and the promotion and protection of cultural diversity."535 A right to regulate clause appears in a good number of recent investment treaties. For example:

public health,

areas

right

* "RECOGNISING their right to regulate and resolving to preserve their flexibility to set legislative and regulatory priorities, safeguard public welfare and protect legitimate public welfare objectives." Australia-Hong Kong (2019).536 to regulate and inherent "RECOGNISING resolving to preserve the flexibility of the Parties to set legislative and regulatory priorities, safeguard public welfare and protect legitimate public welfare objectives, such as public health, safety, the environment, the conservation of the living or non-living exhaustible natural integrity and stability of the financial system and public morals." Australia-Uruguay BIT (2019).53 "Reaffirming the right of Parties to regulate investments in in accordance with their law and policy their territory objectives." India-Belarus BIT (2018).538 "Reaffirming the right of the State Parties to regulate and to introduce new measures relating to investments in their territories in order to meet national policy objectives, andtaking into account any asymmetries with respect to the

resources,

in place-the particular need of developing

measures countries to exercise this right." SADC Model BIT (2012).539 "REAFFIRMING each Party's right to adopt and enforce measures necessary to pursue legitimate policy objectives such as social, environmental, security, public health and safety, promotion and protection of cultural diversity." EUSingapore IPA (2018).540 "The Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, public education, safety, environment or public morals, social or consumer protection privacy and data protection and the promotion and protection of cultural diversity." EU-Singapore IPA (2018).541

B. Reforming Turkey-Africa BITs: Options for Countries in Africa

There are undoubtedly many positive features in the BITs that Turkey has concluded with countries in Africa. In the evolution of Turkey-Africa BITs, an attempt to keep in step with evolving best practices is noticeable. However, despite many positive features, many, if not all, Turkey-African BITs have major shortcomings. Countries in Africa can choose to ignore the shortcomings and accept the agreements as they are. On the other hand, countries in Africa may choose to address the shortcomings in these agreements as part of a broader agenda to engage in comprehensive reform of their BITs. Since 2012, UNCTAD has encouraged countries to modernize their investment treaties and move toward a new generation of IIAs.542

With older BITs (those concluded before 2010), the best approach may well be to terminate those agreements after their initial term expires and to negotiate new ones in their place. With respect to more recent agreements, a distinction must be made between unratified treaties and the treaties that have been ratified and are binding.

1. Termination and Renegotiation

Countries in Africa may choose to terminate those BITs that do not appear towards sustainable development.543 In the last ten years, a growing number of countries

to be balanced and oriented

(e.g., India,544 Indonesia,545 and South Africa546) have taken steps to terminate most of their BITs. To avoid legal liability, it is important to the provisions of each BIT relating to that countries adhere termination. Article 54 of the Vienna Convention on the Law of Treaties stipulates that the termination of a treaty or the withdrawal of a party may take place "in conformity with the provisions of the treaty" or "at any time by consent of all the parties after consultation with the other contracting States."547

terminate

their BITs,

two factors complicate

Although a growing number of states have taken steps to the unilaterally termination of BITs. First, almost all Turkey-Africa BITs have an initial fixed duration of ten years, and termination, to be considered lawful, can only be done at the end of the initial term of a BIT (See Annex D).548 For example, Article 13 (3) of the Turkey-Kenya BIT states: "Either Contracting Party may, by giving one year's written notice to the other Contracting Party, terminate this Agreement at the end of the initial ten-year period or at any time thereafter."549 Second, all Turkey-Africa BITs have survival (sunset) clauses that have the effect of prolonging the effect of a treaty even after the treaty has been terminated. Most Turkey-Africa BITs specify a tenyear survival period (See Annex D).550 For example, Article 3(5) of the Turkey-Kenya BIT stipulates: 'With respect to investments made or acquired prior to the date of termination of this Agreement and to which this Agreement otherwise applies, the provisions of all of the other Articles of this Agreement shall thereafter continue to be effective for a further period of ten (10) years from such date of termination."551

The question of termination

is particularly pertinent with regards to older treaties because most lack important reform features found in more recent agreements. Surprisingly, even when new treaties are concluded, presumably to replace older BITs, contracting states are often not in a hurry to ratify such treaties. Turkey and Tunisia concluded their first BIT on May 29, 1999, and their second BIT on December 27, 2017.552 Presently, only the 1999 BIT is in force.553 Overall, although Turkey has negotiated new BITs with three countries in Africa-Nigeria, Sudan, and Tunisia-presently none of the new agreements have entered into force, as seen below.

Turkey-Africa BITs: Termination and Renegotiation Short Title of BIT

Date of Adoption

In force

Turkey-Tunisia BIT

Turkey-Tunisia BIT

Turkey-Sudan BIT

Turkey-Sudan BIT

Turkey-Nigeria BIT

Turkey-Nigeria BIT

May 29, 1991

Dec. 27, 2017

Dec. 19, 1999

Apr. 30, 2014

Oct. 8, 1996

Feb. 2, 2011

Y

Source: Author's Compilation from UNCTAD's Website554

2. Consultation and Treaty Review

Turkey and countries in Africa could consider reviewing their different BITs with a view to addressing perceived flaws and possibly amending relevant clauses. The bad news is that, with the exception of the Turkey-Kenya BIT, most BITs that Turkey has concluded with countries in Africa do not provide for periodic meetings of contracting request.555 parties nor do Furthermore, for consultation between the contracting parties, it does not mandate consultation, and it does not spell out for consultation.556 In this regard, Article 11 of the Turkey-Kenya BIT is very different from Articles 36(1) and (2) of the India-Belarus BIT, which address the issue of consultation in clear detail. A side-by-side comparison of the two provisions is as follows:

the Turkey-Kenya BIT provides

the modalities

although

Turkey-Kenya BIT Article 11 Consultation

The Contracting Parties the request of shall, at either Contracting Party, hold consultations for the the purpose of reviewing this of implementation studying Agreement any issue that may arise from this Agreement. Such consultations shall be held competent the between the authorities in a Contracting Parties place and at a time agreed appropriate on channels. "

agree

India-Belarus BIT (2018) Article 36 Consultations Periodic Review 36.1 Either Party may request, and the other Party to, shall promptly consultations in good faith on any issue regarding the application, interpretation, execution implementation, other matter any or including, but not limited to: the reviewing (i) this implementation Treaty; the reviewing (ii) interpretation or application of this Treaty; (iii) information; and to Article 30, (iv) subject addressing disputes arising IV of this under Chapter Treaty or any other disputes arising out of investment.

exchanging

legal

under

Further

to 36.2 this consultations Article, the Parties may take they may any action as including decide, jointly making and adopting rules the supplementing rules applicable or under Chapter Chapter V of this Treaty, binding issuing this interpretations Treaty, and adopting joint to in measures

arbitral

order

IV

improve the effectiveness of this Treaty.558

In addition to providing for consultation, recent BITs provide for the periodic meetings of contracting parties. Consider Article 36(3) of the India-Belarus BIT (2018), which stipulates: "The representatives of the Parties shall meet every five years after the entry into force of this Treaty to consult and review the operation and effectiveness of this Treaty as may be necessary."559

3. Treaty Amendment

The BITs between Turkey and countries in Africa can be amended in accordance with international law. Pursuant to Article 39 of the Vienna Convention on the Law of Treaties, "[a] treaty may be amended by agreement between the parties."560 Whether a treaty can be amended and the process of amending the treaty are issues that are typically addressed in a treaty. Most of the BITs that Turkey has concluded with countries in Africa explicitly provide for treaty (See Annex D). Turkey's BIT with Gambia,561 amendment Cameroon,562 and Kenya563 all address treaty amendment. A common formulation of the amendment clause is found in Article 13(3) of the Turkey-Kenya BIT, which states "[t]his Agreement may be amended by mutual written consent of the Contracting Parties at any time."564 To date, no country in Africa has recorded any amendments to any of the BITs involving Turkey.

4. Treaty Replacement

Treaty replacement is an option for a state unhappy with a particular involves terminating an old treaty. Historically, BIT replacement occurred rarely and infrequently.565

renegotiating a new

treaty. Treaty

replacement

treaty and

essentially

However, in recent years, more and more states are resorting to treaty replacement.566 In short, recently, "the emphasis of treaty negotiations has shifted somewhat to replacing older treaties and away from creating treaties with countries with which no previous treaty relation existed."567 Surprisingly, even when African countries conclude new treaties, presumably to replace older agreements, they often do not appear to be in any hurry to ratify the new treaties. Although Turkey and Tunisia concluded their first BIT on May 29, 1999, and their second BIT on December 27, 2017, only the 1999 BIT is in force.568 Overall, as previously discussed above, Turkey has negotiated new BITs with three countries in Africa-Nigeria, Sudan, and Tunisia-but presently none of these new agreements have entered into force.569

A growing number of countries are reforming their BITs and other investment treaties to make them more oriented towards reform sustainable development.570 Countries are undertaking because it is increasingly recognized that international investment agreements "are concluded in a specific historic, economic and social context and respond to the then existing needs and challenges" and that today there is a need to design treaties that respond to new challenges.571 Indeed, "[i]n the last ten years, the need for systematic ..regime reform of the global international investment agreements . has become increasingly evident."572 UNCTAD estimates that "since 2012, over 150 countries have undertaken at least one reform action in the pursuit of sustainable development-oriented HAs and most new treaties contain key reform elements." 573 To UNCTAD, reform of international investment agreement has made significant progress investment and has entered

the mainstream of international

VANDERBILTJOURNAL OF TRANSNATIONALLAW

policymaking.574 This begs several questions: Will countries in Africa press Turkey to address perceived shortcomings in Turkey-Africa BITs? If pressed, is Turkey likely to agree to improve the BITs that it has concluded with countries in Africa? What policy and practical considerations are likely to affect the Turkey-Africa BIT regime now and in the future? The policy and practical considerations that shape Turkey-Africa relations and are likely to influence any discussions about possible reform of Turkey-Africa BITs are analyzed in this Part.

A. Key Policy Considerations that Shape Turykey-Africa BIT Regime

A number of policy considerations are likely to shape the dynamics of Turkey-Africa BITs now and in the future. Key among these factors are: Turkey's desire to be seen as a friend of Africa,575 Turkey's membership in the Council of Europe,576 Turkey's own selfinterest and possible pressure investors and businesses,577 Turkey's ability or inability to deliver on many of its promises to countries in Africa,578 and Turkey's so-called mosquebuilding diplomacy that is raising serious concerns and critiques.579

from Turkish

1. Turkey's Desire to Be Seen as Africa's "Friend"

Turkey is clearly casting herself as a true friend of Africa.580 According to the "talking points" for a Turkey-Africa Partnership High Level Officials Meeting, in 2013, "Turkey considers herself a full member of the AU, and it is for this very reason that Turkey formulates her African policies in line with the decisions and declarations of the AU."581 In a 2014 speech, Erdogan declared that all sides had mutually completed the opening up process and that it

574. Id. 575. See infra Part VII.(A)(1). 576. See infra Part VII.(A)(2). 577. See infra Part VII.(A)(3). 578. See infra Part VII.(A)(4). 579. See infra Part VII.(A)(5). 580. See Richaed Gueli & Oguzhan Kase, Turkey Ready to Befriend Africa,

SUNDAY INDEP. (Feb. 10, 2008, 4:24 PM), http://www.iol.co.za/news/world/turkey-readyto-befriend-africa-1.388625 [https://perma.cc/AU53-MRNE] (archived Sept. 11, 2019) (written after the authors' participation in the third International Turkish-African Congress in December 2007); Recep Tayyip Erdokan, Turkey: Africa's Friend, Compatriot, and Partner, AL JAZEERA (June 1, 2016), http://www.aljazeera.com/in depth/opinion/2016/06/turkey-africa-friend-compatriot-partner-160601070207148.htm [https://perma.cc/HR8E-4RQM] (archived Sept. 11, 2019).

581. Turkey-Africa Partnership High Level Officials Meeting (Talking Points),

supra note 114.

was "now necessary to move to a new and more advanced stage based on equal partnership."582 As Erdokan put it:

The Turkish Minister of Foreign Affairs, Mevlift Qavugoklu, has also echoed the promises of solidarity, equal partnership, a win-win outcome, and mutual benefit.M "Our approach to Africa is based on transparent, long-termed, and strategic partnership," the Turkish Minister of Foreign Affairs reiterated in a 2018 speech given in celebration of Africa Day.585 "As I mark the Africa Day with joy, I underline Turkey's commitment to our partnership with Africa based on the principles of equality, partnership, solidarity, sustainability, and mutual respect," Mevlfit Qavugoglu stated in his 2018 speech.586 According to Qavugoklu:

2. Turkey's Membership in the Council of Europe

As a member of the Council of Europe, Turkey is obliged to abide the the principles of

the organization and

to promote

by

organization's agenda.588 Human rights and sustainable development are high on the agenda of the Council of Europe.589 In a 2015 letter to then-Secretary General of the United Nations Ban Ki-Moon, the Council of Europe Secretary General, Thorbjorn Jagland, observed that "[t]he Council of Europe is an organization founded on the universal values of human rights, democracy and the rule of law. Our contribution must therefore focus on these values. They are not only values in their own right, but important factors of sustainability for any societal model."590 Sustainable development also features prominently in the agenda and programs of the Council of Europe.591

The Council of Europe is addressing issues at the intersection of business and human rights. In policy instruments, such as the Declaration (16 April 2014) of the Committee of Ministers supporting the UN Guiding Principles592 and Recommendation CM/Rec(2016)3 on Human Rights and Business,593 the organization calls on member the human rights impact of the trade and states to consider investment agreements that they negotiate and sign and to take appropriate steps, including through the incorporation of human

rights clauses, to mitigate and address identified risks of adverse impacts on human rights.594

3. Turkey's Self-Interest

Western nations, in their role as capital exporters, relied heavily on BITs to protect the interest of their investors in overseas markets.595 Today, as emerging market economies increasingly export capital to foreign markets, it is not surprising that they are turning to BITs to protect the interest of their investors.596 With growing investments in Africa and other overseas markets, Ankara is clearly under pressure to protect its investors and investment and is, in turn, putting pressure on new partners to conclude BITs.597 During his visit to Algeria, Erdogan reportedly "praised the good relations between Algeria and Turkey, but put pressure on the topic of investment protection."598 According to the report, Erdoaan argued "that with the help of a bilateral agreement that secures investments in Algeria, trade between the two countries could increase to more than double in the coming years."599 The main purposes of Turkey's BIT programs are to increase the bilateral flows of capital and investments of technology, and international investors in Turkey as well as Turkish investors abroad.600

to provide protection

4. Ankara Ability or Inability to Deliver on Its Many Promises to Countries in Africa

Whether countries in Africa are willing and able to press Turkey on the BIT issue will depend on whether Ankara can deliver on its promises of aid to the continent. Arguably, some African.leaders are apt to ignore flaws in investment agreements if they believe that they can secure other benefits from Turkey. Will Erdokan's current excursion to Africa deliver the desired outcome for all actors, and what happens if it does not?601

long-term

sustainability

of Turkey's

humanitarian engagement in Africa is questioned in some circles.602 Experts believe that Turkey's primary challenge "will be sustaining its lofty ambitions in Africa."603 According to Alex Vines and Daragh Neville, "[d]espite impact has been limited.604 Although bilateral trade reached $19.5 billion in 2015, a threefold increase in volume compared to 2003, Africa's share of Turkey's total global trade remains minimal."605 Vines and Neville add:

the economic

significant

rhetoric,

5. Competition for Capital From Emerging Markets

African countries are not the only countries seeking to increase their FDI inflow, nor are they the only countries trying to attract capital from emerging market economies.607 The intense competition

for capital from emerging market economies may make it more to press Ankara to address challenging for countries in Africa perceived flaws in their BITs.608 Turkey is courting countries in Africa at the same time that it is courting countries in Asia, the Caucuses, and Latin America.609 As one observer put it, "[w]ith a strong impetus coming from the business associations that represent the private sector, Turkey has introduced new campaigns to bolster its economic and trade ties with Africa, Latin America and East Asia."610

6. Disturbing Questions that Critics May Dare to Ask

The real motives behind Ankara's

interest in Africa and generosity to countries in the region is an issue that critics are wondering about.611 Questions are also increasingly asked about the effectiveness of Turkey's engagement in Africa.612

Ankara's apparent Pan-Islamic inclination is a concern in some quarters. In 2006, the Religious Leaders Meeting of African Muslim

corporate-finance/our-insights/the-tougher-competitors-in-emerging- markets [https://perma.cc/8R5J-P52X] (archived Aug. 18, 2019); Jonathan Woetzel et al., The Best-Performing Emerging Economies Emphasize Competition, HARV. Bus. REV. (Sept. 17, 2018), https://hbr.org/2018/09/the-best-performing-emerging-economies-emphasizecompetition [https://perma.cc/9UXW-XCM3] (archived Aug. 18, 2019).

Conference,

Buenos Aires

608. McKinsey & Co., supra note 607; Woetzel et al., supra note 607. 609. Sadik Unay, Turkey's Emerging Power Politics in Latin America, DAILY 2015/02/14/ SABAH (Feb. 14, 2015), https://www.dailysabah.com/columns/sadik-unay/ [https://perma.cc/36G3-BLQW] turkeys-emerging-power-politics-in-latin-america (archived Aug. 18, 2019); Juan Vagni, Amdrica Latina y el mundo drabe: un acercamiento desde la di-plomacia puiblica y la cooperaci6n cultural, FLACSO-ISA 2015), 23-25, Joint 202014/Archive/ http://web.isanet.orgWeb/Conferences/FLACSO-ISA%2BuenosAires% (archived c58a6c98-e430-4857-8bde-e43b5ca7a57e.pdf Oct. 9, 2019; see also Ariel Gonzalez & Huseyin Zengin, A Decade of Opening: Turkey's New International Role in Sub-Saharan Africa and Latin America, 3 TIEMPO DEVOTADO 262 (2016); Ariel Gonzalez Levaggi, Turkey and Latin America: A New Horizon for a Strategic Relationship, 18 PERCEPTIONS 99 (2013); Meliha Altunisik, The Turkish Model and Democratization in the Middle East, 27 ARAB STUD. Q. 45, 45 (2005); Meliha Altunisik, The Possibilities and Limits of Turkey's Soft Power in the Middle East, 10 INSIGHT TURK. 41, 41 (2008); Deha Erpek, Turkey and the Least Developed Countries: A New Partnership, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., partnership.tr.mfa (last visited Oct. 9, 2019) [https://perma.cc/7SM2-HX9F] (archived Aug. 18, 2019).

http://www.mfa.gov.tr/turkey-and-the-least-developed-countries_--a-new-

[https://perma.cclLF8R-XEJK]

(July

610. Fidan, supra note 96, at 93. 611. See Omer Taspinar, Turkey's Middle East Policies Between Neo-Ottomanism 2008),

and Kemalism, CARNEGIE https://carnegieendowment.org/2008/10/07/turkey-s-middle-east-policies-between-neoottomanism-and-kemalism-pub-22209 [https://perma.ccP7TX-4JW5] (archived Aug. 18, 2009); see also Mehmet Ozkan, What Drives Turkey's Involvement in Africa?, 37 REV. AFRICAN POL. ECON. 533 (2010).

INT'L PEACE

ENDOWMENT

(Oct.

7,

612. See Neville & Vines, supra note 203.

Countries was held in Istanbul.613 In October 2015, the first summit of Muslim religious leaders from the Asian and Pacific opened in Turkey.614 In 2018, Turkey hosted the "World Muslim Minorities Summit."615 Turkey's "mosque-building diplomacy" has been noted by many.616 Some critics are concerned that the religious undertone in Ankara's Africa policy could stoke the flames of religious intolerance in the continent and undermine efforts to stem religious extremism in Africa.617 Abdullah Bozkurt, the Ankara Bureau Chief for Today's Zaman, reputed to be Turkey's best-selling English daily newspaper, has argued that "[b]ehind the fagade of trade, investment and aid initiatives lies a sinister campaign of turning Africa into a hotbed of Turkish Islamists who want to create proxies as leverage like they have done in Syria, Libya and other Arab and African countries."61s In a recent article in the National Review, Michael Rubin notes that in its outreach to countries in Africa, "Turkey has promoted Islamist causes"619 and warns that "[a]s Turkey has invested in Africa, it has sought to promote itself and more-extreme Islamist interpretations at the expense of the West and the post-World War II liberal order."620 "What Saudi Arabia was to Islamic Extremism across the Arab world in the late 20th century, Turkey could be to Africa in the 21st," Rubin opines. According to Rubin:

Criticism has also come from other Gulf states. Saudi Arabia's Crown Prince Mohammed bin Salman has accused Erdokan of trying to build an "Ottoman caliphate" in Africa.622

Some critics point to a lack of transparency and accountability in many Turkey-Africa arrangements.623 According to Kemal Kirisci, a senior fellow at the Brookings Institution, "[t]he greatest challenge here is that, increasingly, Turkish humanitarian and developmental little assistance accountability."624

transparent

suffers

not

The effectiveness of Turkey's representational role at the G20 2015 Summit and Ankara's claim of solidarity with poor developing countries has also been questioned.625 According to one editorial, "[m]uch of the G20's 2015 progress on its development agenda reflected processes begun before Turkey's presidency. Turkey did little to leverage or otherwise specify these processes in terms of its stated intent to represent low income, least developing, or SSA countries."626 According to this editorial, "[a]side from its hosting of the WTO Trade Ministers' meeting, Turkey failed to strategically apply its G20 presidency ...to engage other development platforms on behalf of low income, least developed, and SSA countries.627 Overall, the editorial concludes that Turkey "has yet to realize its self-styled description as a leader of, and model for, low income, least

developed, and SSA countries."628 Unfortunately, "given Turkey's current domestic and regional challenges including those of a security and economic nature, representation of these countries is no longer a priority."629

7. Crisis in International Investment Law and Ongoing Reform Efforts

Across the globe government officials,630 scholars,63' lawyers,632 and civil society organizations633 are voicing concerns about the international investment legal regime and about bilateral investment treaties in particular.634 Concerns have been raised regarding the nature, content, and scope of international investment law.635 One

strand of criticism focuses on perceived imbalances in investment treaties.636 Critics argue that most BITs are unbalanced in the sense that they focus on investor protection but not on investor obligation, and they focus on the obligation of host states but not on the rights of host communities.637 Critics are also concerned that BITs restrict domestic policy space and make it extremely difficult for host states to regulate in the public interest.638 While these concerns are prompting some countries to withdraw from the system altogether,639 most countries are simply focusing their attention on reforming and updating their BITs.640 After a multiyear BIT review, India revamped its IIA regime. In 2016, India released a new Model BIT.641 Recent BITs have a tendency to contain provisions designed to preserve domestic policy space and to balance the rights and obligations of those of host states.642 Intergovernmental investors vis-&-vis organizations such as UNCTAD are also calling for reform of international investment policy.643 Reform elements found in recent BITs but not typically found in Turkey-Africa BITs include:

* A security exception;644 * A balance of payment exception;645

Mandated by the U.N. Human Rights Council to the UNCITRAL Working Group 1-2 (Mar. 7, 2019) (on file with U.N. Office of the High Comm'r for Human Rights).

636. Id. 637. Id. 638. Id. at 2 (noting that IIAs pose risks to the regulatory space required by States to comply with their international human rights obligations as well as to achieve the Sustainable Development Goals). Following a review of South Africa's BITs, South Africa's Department of Trade and Industry concluded that: "Major issues of concern for developing countries are not being addressed in the BIT negotiating processes.... New investment rules in BITs prevent developing country governments from requiring foreign companies to transfer technology, train local workers, or source inputs locally. Under such conditions, investment fails to encourage or enhance sustainable development." REPUBLIC S. AFR., DEP'T OF TRADE & INDUS., BILATERAL INVESTMENT TREATY POLICY FRAMEWORK REVIEW: GOVERNMENT POSITION PAPER 1, 11 (2009).

639.

Indonesia is an example of a country that has terminated most of its BITs and is exploring reform options. See Arif Havas Oegroseno, Revamping Bilateral 2014/07/ Treaties, JAKARTA POST, July 7, 2014, https://www.thejakartapost.com/news/ [https://perma.cc/TXE8-JSG8] (archived Aug. 18, 07/revamping-bilateral-treaties.html 2019) [hereinafter, Oegroseno, Revamping Bilateral Treaties]; see also Oegroseno, Indonesia's Bilateral Investment Treaties, supra note 544.

640. See, e.g., Netherlands Model BIT, supra note 529. On October 19, 2018, the

Dutch government adopted Netherland's new model BIT.

641. See 2016 Indian Model BIT, supra note 29; see also Ilge & Singh, supra note

29.

642. See generally UNCTAD's REFORM PACKAGE FOR THE

INTERNATIONAL INVESTMENT REGIME, supra note 30 (discussing reform of international investment agreements and noting that a growing number of countries are engaging in reform).

643. See generally WORLD

INVESTMENT REPORT 2012: TOWARDS A NEW

GENERATION OF INVESTMENT POLICIES, supra note 31.

644. See, e.g., Kazakhstan-Singapore BIT, supra note 512, at art. 20. 645. See, e.g., id. at art. 9.

* Limits on the national treatment guarantee through the

protection of sensitive sectors;646

* Clarification of vague obligations such as the obligation to

accord foreign investors "full protection and security";647 and

* A clause on investor responsibility and corporate social

In a BIT, a security exception allows contracting parties to apply measures they consider necessary to protect their essential security interests.649 Article 20 of the Singapore-Kazakhstan BIT is an example and provides:

In a growing number of BITs, policy space is provided to enable to address serious balance-of-payments crises and financial difficulties. For example, Article 9 of the

host states external Singapore-Kazakhstan BIT Provides:

Even while guaranteeing national treatment, in a growing number of recent BITs, contracting states reserve the right to exclude treatment sensitive sectors of the economy obligation.652 Article 4 of the United Arab Emirate-Kazakhstan BIT is an example:

the national

Compare the National Treatment clause in the KazakhstanSingapore BIT (2018) with the national treatment clause in TurkeyRwanda BIT (2016):

Turkey-Rwanda BIT (2016) Kazakhstan-Sing. BIT (2018) Article 4 Article 4 Treatment of Investments National Treatment to 2. Each Contracting Party shall 1. Each Party shall accord investors of the State of the other accord to these investments, once less investments established, their Party favourable than that accorded in treatment no less favorable than to circumstances like a treatment which it accords to investments of its investors or to investors of its State and their

treatment no

VANDERBILTJOURNAL OFTRANSNATIONAL LAW

[VOL .52:949

concerning

investments investments of investors of any the management, maintenance, use, third State, whichever is the enjoyment or any other form of most favourable, as regards the disposition of investments unless management, maintenance, use, otherwise provided in its national operation, enjoyment, extension, legislation, governmental policies sale, liquidation or disposal of the and guidelines.

investment.655

policies

national

2. Each Party in accordance with its legislation, governmental and guidelines reserves the right to identify the sensitive sectors of economy and/ or other related activities that would be limited or excluded from the scope of this obligation.654

In recent BITs, contracting states are taking care to limit legal liability by clarifying the meaning of vague termS.656 For example, the obligation on host states to offer investors "full protection and security" is increasingly defined and clarified.657 Article 3 of the Kazakhstan-UAE BIT is an example:

Protection of investments

1. Investments by investors of either Contracting Party and returns shall enjoy full protection and security in the territory of the other Contracting Party in a manner consistent with national legislation and this Agreement and applicable rules of international law...

2. Full protection and security shall not create any obligation the Contracting Party other than what the host state accords to its own nationals and other aliens.658

Compared to the "full protection and security" obligation in the Turkey-Rwanda BIT, Article 3 of the India-Belarus BIT (2018) is more carefully worded:

654. See Kazakhstan-Singapore BIT, supra note 512, art. 4. 655. See Rwanda-Turkey BIT, supra note 66, art. 4. 656. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 33-47 (discussing strategies countries are using to limit exposure to legal risks associated with BITs).

657. Id. 658. Kazakhstan-UAE BIT, supra note 652, at art. 3.

Turkey-Rwanda BIT (2016) Article 3 Promotion Protection Investment

and of

India-Belarus BIT (2018) Article 3 Treatment investments

Each Party 3.2 shall accord in its to territory investments of the other Party and to with investors their to respect full investments and protection For security. greater certainty, 'full protection and security" only refers Party's to obligations relating to physical security of investors and to investments made by the investors of the other Party and to any other not obligation whatsoever.

Investments of 2. each of investors Party Contracting shall at all times be treatment accorded in accordance with law international standard minimum treatment, of fair and including treatment equitable full protection and and security in the territory of the other Party. Contracting Neither Contracting in any Party shall the way management, maintenance, operation, enjoyment, extension, liquidation disposal investments unreasonable discriminatory measures.659

sale, or such by or

use,

Finally, some recent investment agreements explicitly address corporate social responsibility. Article 9 of the Brazil-Malawi Cooperation and Facilitation Investment Agreement titled "Corporate Social Responsibility.",66 Article 9 stipulates that investors and their investment "shall strive to achieve the highest possible level of contribution to the sustainable development of the Host Party and the local community, through the adoption of a high degree of socially responsible practices, based on the voluntary principles and standards set out in [the] Agreement."662 Investors are required to use their best efforts to, inter alia, "[r]espect the human rights of those involved in the companies' activities, consistent with the international obligations and commitments of the Host Party";663 "[e]ncourage the strengthening of local capacities building through close cooperation with the local community";664 "[e]ncourage the development of human capital, especially by creating employment opportunities and facilitating access of workers to professional training";665 and "[s]upport and maintain good corporate governance principles, and develop and apply good practices of corporate governance."666

B. Practical Considerations

1. Turkey's Immense Experience with BITs

Compared to countries in Africa, Turkey is not a newcomer to BITs. Turkey signed its first BIT in 1962 with Germany.667 Today Turkey has concluded about one hundered and twenty-eight BITs and an additional investment provisions (TIPs).668 Turkey has signed BITs with developed as well as developing countries.669 Compared to most African countries, Turkey has a dynamic BIT program670 and has its own Model BIT.671 The

treaties with

twenty-one

implications for countries in Africa are evident. To negotiate from the position of strength, countries in Africa must be prepared and use experts experienced in international investment law and treaty making.

2. Turkey's Deployment of Soft Power in the African Continent

Turkey's deployment of soft power in Africa is a complicating factor.672 Turkey-Africa BITs are negotiated and concluded against the backdrop of increased display of Turkish soft power in the continent.673 Turkey's increased deployment of soft power can make it to press Ankara when it comes to difficult for African leaders renegotiating BITs.674 In October 2017, Turkey opened its largest overseas military base in Mogadishu, Somalia.675 In January 2017, Erdogan, announced plans to open an embassy in every African capital.676 "Our goal is to have embassies in all African countries, and turn Africa into a continent with which we have much closer bilateral ties," Erdoaan declared in January 2017, before departing for his four-day Africa tour which included stops in Tanzania, Mozambique, and Madagascar.677

3. Lack of Coordination on the African Side

Most countries

international investment policy and most lack a well-defined BIT strategy.678 In their engagement with Turkey, there is no evidence that African countries have a coordinated or synchronized approach to the BITs

lack a coherent

in Africa

they are concluding or that they are negotiating against the backdrop of continental vision and goals.679

A careful study of Turkey-Africa BITs suggests that most are not the products of intense negotiations, but were hastily concluded to coincide with visits of high-ranking Turkish officials to Africa.680 By some accounts "[w]ith the exception of the year 2008, President Erdokan [has] traveled to Africa at least once yearly since 2005."681 Since 2004, Erdokan has made about forty trips to twenty-four countries in Africa.682 Between February and March 2018, Erdokan visited four African countries.683 Erdokan also visited six African countries in 2017,684 seven in 2016,685 and three in 2015.686 Erdogan is the first leader in the history of Turkey to visit twenty-three African countries and is now among the world leaders with the most visits to Africa.687 From every indication, some countries in Africa chose to reward these visits with BITs and other investment contracts.688

Erdogan Visit by Year and Turkey-Africa BITs by Year

Year of Visit 2018

Country Visit Mali

BIT Turkey-Mali BIT (2018)

2017 2017

Mauritania

Chad Mozambique

Turkey-Mauritania (2018) Turkey-Chad BIT (2017) Turkey-Mozambique

2017 2016

2016 2016

Tunisia C6te d'Ivoire

Somalia Ghana

(2017) Turkey-Tunisia BIT (2017) Turkey-C6te (2016) Turkey-Somalia BIT (2016) Turkey-Ghana BIT (2016)

d'Ivoire BIT

stage

reached

in Africa have

Presently, Africa-Turkey relations are growing, deepening, and widening. From every indication, relations between Turkey and strategic countries partnerships.689 In a little over a decade the position of Turkey in Africa moved from that of having an "Observer Status" in the African Union to that of becoming a "Strategic Partner" of the African continent.690 According to the Joint Implementation Plan 2015-2019, "[t]he relations between Africa and Turkey have reached the stage of a mutually reinforced Strategic Partnership." In October 2018, the African Union Commission Department of Economic Affairs and the Turkish Embassy signed a Framework Cooperation Agreement.691 In October 2018, the Turkey-Africa Second Economic and BusinessForum (Turkey-Africa II. Economic and Business Forum) was jointly organized by the Turkish Ministry of Commerce, the African Union Commission and DEiK under the motto of "Building a Sustainable joint ventures."692 Future Together

investments and

important milestone

Signaling another the Turkey-Africa relationship, during the Turkey-Africa II. Economic and Business Forum, the African Union Commission and the Ministry of Trade of the Republic of Turkey signed a Memorandum of Understanding on Trade and Investment Cooperation.693

long presence

Developed countries have had a

in Africa. Following in their footsteps, emerging powers are establishing their presence in the continent and are seeking to grow their presence.694 Although Turkey has adopted a nuanced and multitrack approach in its engagement with countries in Africa, Turkey's engagements with Africa are largely driven by economic considerations and are occurring against the backdrop of renewed competition for Africa's natural resources and geostrategic positioning by developed countries and emerging powers alike.695 In the Joint Implementation Plan 2015-2019, all sides agreed to: "[e]xplor[e] the possibilities to support the common objectives of the parties to expand trade and investment volume from US$30 billion in 2013 to US$50 billion by 2019."696 Furthermore, a communique issued in February 2018 following the Second Ministerial Review Conference of African Union-Turkey Partnership, "noted the importance of trade and investment as key components of relations between African countries and Turkey" and reiterated the desire "to further strengthen economic and commercial relations."697

Turkey's President Recep Tayyip Erdokan appears to be invested in Africa for the long-term, although Turkey's trade and investment in the region is presently very modest compared to its trade and investment with other regions of the world.698 Thus far, President Erdokan and the Justice and Development Party have been

693. Press Release, Foreign Econ. Relations Board of Turk. (DEIK, Turkish President Erdogan Calls on Africa to do Business in Local Currency (Oct. 10, 2018) (on file with author).

694. Judd Devermont, The World is Coming to Sub-Saharan Africa. Where is the 2018),

United States?, CTR. STRATEGIC & https://www.csis.org/analysis/world-coming-sub-saharan-africa-where-united-states [https://perma.ccl5BSX-JLYP] (archived Oct. 9, 2019).

STUD.

INVL

695. Alexis Habiyaremye & Tank Oguzlu, Engagement with Africa: Making Sense of Turkey's Approach in the Context of Growing East-West Rivalry, 11 ULUSLARARASI ILISKILER 65, 66 (2014) (suggesting an economic underpinning to Turkey-Africa relations and noting that "Turkish interest in, and opening up to Africa, came at a time when many African economies had started to enjoy relatively robust growth rates as a result of a booming trade with China.").

696. Second Joint Implementation Plan, supra note 179, at T 6(h). 697. The Second Ministerial Review Conference of African Union: Turkey Partnership, Communique, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK. (Feb. 12, 2019), http://www.mfa.gov.tr/the-second-ministerial-review-conference-of-africanunion-_-turkey-partnership-en.en.mfa 2019).

[https://perma.cc/ATL4-F3E3] (archived Oct. 9,

698. SHINN, supra note 8, at 17 (stating that "The breadth of Turkey's

involvement in SSA suggests that its intention is to engage for the long term.").

instrumental in forging Turkey-Africa relations.699 Whether TurkeyAfrica relations will survive any future change of government in Turkey is anyone's guess.700

completely different purpose

In its forays into Africa, is Turkey using the same types of legal instruments, for example BITs, that Western nations used in the past and are still using? To the extent that Turkey is using the same legal instruments that Western nations used in the past, is Turkey using these instruments in the same way or are these instruments serving relationships? a Specifically, do Turkey-Africa BITs depart markedly from the BITs that countries in Africa concluded with Western nations? Compared to traditional BITs, are Turkey-Africa BITs more oriented towards sustainable development? Are the principles of solidarity, equal partnership, a win-win outcome, and mutual benefit, which underpin Turkey-Africa relations, reflected in the BITs? And if so, to what degree?

in unfolding

First, like most Western nations, Turkey has embraced the international investment law in general and BITs in particular. Turkey has not shown any interest in following in the footsteps of emerging market economies like India,701 Indonesia,702 and South Africa703 that are terminating their BITs and appear to be rejecting the international investment law regime. In sharp contrast to many

699.

Id. at 18 (noting that Erdokan has been the chief architect of Turkey's

renewed engagement in SSA).

700. Id. (predicting that while a change in government could cause Turkey to reduce, for example, its huge political and humanitarian engagement in Somalia, "Ankara will almost certainly continue to retain its strong commercial relations with SSA countries" and that "business and cultural connections are too deeply embedded to allow interest in Turkey's Africa strategy to cease.").

701. Amiti Sen, India's Bilateral Investment Pacts Under Cloud, Bus. LINE (Apr.,

9, 2017), https://www.thehindubusinessline.com/economy/indias-bilateral-investmentpacts-under-cloudlarticle9625580.ece [https://perma.cc/M59X-9G5V] (archived Aug. 18, 2019).

702.

In March 2014, Indonesia announced publicly plans not to renew its BIT with Netherlands but let the said treaty expire effective July 1, 2015. Subsequently, Indonesia announced plans to let all of its sixty-seven BITs expire. Oegroseno, Revamping Bilateral Treaties, supra note 639; see also Phuong Nguyen, Indonesia's Foreign Policy under Jokowi: A Giant Comes Knocking, COGITASIA (Jan. 13, 2015), policy-under-jokowi-a-giant-comes-knocking/ http://cogitasia.com/indonesiasforeign[https://perma.cc/SK7T-KQVJ] (archived Aug. 18, 2019).

703. To date, South Africa has terminated BITs with a number of countries, including Argentina, Austria, Belgo-Luxembourg Economic Union, Denmark, France, Germany, the Netherlands, Spain, Switzerland, Sweden, and the United Kingdom. See International Investment Agreements Navigator-South Africa, U.N. CONFERENCE ON https://investmentpolicy.unctad.org/international-investmentDEV., TRADE (last visited Aug. 10, 2019) [https://perma.cc/ agreements/countries/195/south-africa 6M8T-FCCC] (archived Oct. 9, 2019) [hereinafter Investment Policy Hub -South Africa]; see also Qobo & Soko, supra note 545.

&

developing countries that have been critical of bilateral investment treaties, Turkey has stepped up its investment treaty-making practice. In the last decade, since 2009, Turkey has concluded fortynine known BITs with countries in diverse regions of the world.704

Second, Turkey's conception of BITs as primarily investorprotection instruments mirrors those of most Western nations. With its role changing from that of a capital importer to that of both a capital importer and exporter, Turkey is clearly under pressure to protect Turkish investors and is increasingly using BITs, not necessarily to attract investors, but to protect Turkish investors who are venturing into oversea markets. In years past, Turkey viewed BITs primarily as a tool to improve domestic investment climate and to attract foreign investment. Today, Turkey increasingly views BITs as "the only tool that can be relied on by the Turkish entrepreneurs investing all around the world to protect their investments and related rights."705

Third, despite its avowed commitment to the principles of solidarity, equal partnership, win-win outcomes, and mutual benefit in Turkey-Africa relations, these principles are not reflected in the BITs that Turkey has concluded or is concluding with countries in the region. For the most part, these principles are only found in hortatory instruments such as the 2008 Instabul Declaration and the 2014 Malabo Declaration.

Finally, very much like traditional BITs, Turkey-Africa BITs are not development cooperation instruments and were not specifically designed promote and sustainable development in host states. However, although Turkey-Africa BITs are primarily investorprotection instruments, they are constantly evolving and more recent BITs appear to have been drafted with a view to striking a more appropriate balance between investor/investment protection and sustainable development. Indeed according to Turkey's Ministry of Trade, "Turkey ... follows a dynamic program to conclude new BITs and modify the old ones in line with the new developments in global investment law."706 While improvements are undoubtedly called for, recent Turkey-Africa BITs do provide some policy space for host states.

It is up to countries in Africa to review their BITs and design BIT programs that strike an appropriate balance between investment and sustainable development. It is imperative that countries in Africa approach BIT negotiations seriously and strategically. Policy coherence in investment policymaking.707 is

important

It

imperative that countries in Africa develop a coherent international investment policy and ensure that the BITs that they conclude are consistent with national, regional, and continental development goals and strategies. For example, African Union Agenda 2063 is the "continent's strategic framework that aims to deliver on its goal for inclusive and sustainable development.708 The vision of Agenda 2063 is that of "an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the international arena."709 Among the "Aspirations" identified in Agenda 2063 are inclusive growth and those of: "A prosperous Africa based on (Aspiration 1), "An Africa of good sustainable development," governance, democracy, respect for human rights, justice and the rule of law" (Aspiration 3); and "An Africa whose development is peopledriven, relying on the potential of African people, especially its (Aspiration 6).710 women and youth, and caring for children" Although in their engagement, both sides emphasize the centrality of the African Union Agenda 2063 as one of the guideing frameworks for the unfolding partnershion, it is debatable and, even doubtful, that Turkey-Africa BITs modeled as they are after traditional BITs, will help the two sides achive their desired goals.

Countries in Africa must look beyond the charm offensive of emerging partners and critically evaluate the values, motivations, and strategies of each partner. This begs several questions. First, what are Turkey's real motivations? The question is important because as some commentators have noted, "the question of why Turkey has shown what some consider to be an unexpected interest in the continent still does not have a clear answer for Turkey's African partners."711 Second, while Turkey is ready and prepared to engage with countries in Africa, are these countries prepared and well-equipped to engage with Turkey?712 While Turkey appears to be ready and fully-equipped to engage with countries in Africa, most countries in Africa appear to be ill-prepared to engage strategically with a country like Turkey. For one thing, Turkish foreign policy

makers have an array of instruments in their tool kit that would enable them to engage with countries in Africa from a position of strength.713 For another, the suppliant position of most countries in Africa vis-a-vis Turkey undermines their ability to engage in hard bargaining in any trade and investment agreement. It is important that African leaders pay careful attention to the links between Turkey's humanitarian diplomacy and its economic diplomacy in Africa.714

Turkey's claims of a win-win economic partnership need to be routinely interrogated and Turkey's overall ambition in the continent constantly reassessed. In a recent article, Turkey and the New Scramble for Africa: Ottoman Designs or Unfounded Fears?, Zach Vertin rightly notes that "[a] right-sized assessment of Turkish ambitions and its influence in the Horn of Africa requires zoom, medium, and wide-angle lenses" and highlights how Turkey's regional competition with Gulf rivals may be playing out in Africa.715 It is imperative to examine Turkish multifaceted and nuanced engagements in Africa. There are many questions that African leaders must answer as they forge deeper ties with Turkey. What are the costs and benefits of Turkey's humanitarian diplomacy in Africa? Does Turkey's humanitarian diplomacy weaken the capacity of African leaders to press Ankara on important trade and investment issues? Given deep rivalry between Turkey and Gulf States such as Saudi Arabia and the United Arab Emirates, what are the opportunity costs for Africa, of unquestioned alliance with Turkey? It is important to move beyond Turkey's anticolonial and benevolent partner discourse and ask some hard questions. What is in it for countries in Africa and are the legal instruments that underpin Turkey-Africa unfolding relationships really designed to deliver winwin outcomes and sustainable development benefits to all sides? This question important because while there are many noneconomic factors at play, Turkey's engagement with Africa is largely driven by economic considerationS.716 As Ali Bilgic and Daniela Nascimento put it:

is very

initiatives

An exhaustive analysis of the political economy of Turkey-Africa relations is beyond the scope of this paper. It is too early to determine in Africa will deliver sustainable whether Turkey's development benefits that benefit ordinary Africans.718 This Article suggests that countries in Africa are yet to develop a robust strategy for engaging Turkey. Some commentators have described African to Turkey's African diplomacy as a "mixture of mild reaction expectation and confusion."719 In their BITs with Turkey, countries in Africa have been "rule takers" rather than "rule makers" with the result that, like traditional BITs, Turkey-Africa BITs are primarily designed to protect capital exportes and not capital importers. in Africa Regarding Turkey-Africa economic relations, countries must start by educating themselves about the values and motivation that underpin Turkey's foreign policy720 and must pay close attention to Turkey's foray into countries outside of Africa.721 Countries in Africa must also educate themselves about the role of emerging markets and middle powers in global governance and seek to understand the strategies of these new actors.722 Beyond Turkey-

Africa relations, countries in Africa must develop strategies for engaging with emerging partners, must develop their own foreign policy instruments, and must train and deploy a seasoned, educated, committed, and diversified pool of actors involved in the foreign policy domain.

Country

Status Date

Annex A Turkey-Africa Bilateral Investment Treaties: In Force Treaties in Text

Concluded 04/10/1996 In force 16/11/2000 In force In force 25/11/2009 In force 07/02/2013 08/04/1997 In force 15/06/2010 In force 29/05/1991 In force

1 Egypt 2 Ethiopia 3 Libya 4 Mauritius 5 Morocco 6 Senegal 7 Tunisia Source: Author's Compilation from Information Available on UNCTAD's Website

Available Yes Yes Yes No Yes Yes Yes

Date Force 31/07/2002 10/03/2005 22/04/2011 30/05/2016 30/05/2004 17/07/2012 28/04/1994

Annex B Turkey-Africa Bilateral Investment Treaties: Signed But Not in Force

Country

Status Date

Signature

Text Available

of Date of Entry into Force

Algeria

Benin

Burundi

Cameroon

Chad

C6te d'Ivoire

Djibouti

Gabon

Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed

03/06/1998

11/12/2013

14/06/2017

24/04/2012

26/12/2017

29/02/2016

25/09/2013

18/07/2012

,

Gambia

10 Ghana

11 Guinea

12 Kenya

13 Mali

14 Mauritania

15 Mozambique

16 Nigeria

16 Nigeria

17 Rwanda

18 Somalia

19 South Africa

20 Sudan

20 Sudan

21 Tanzania

(not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force) Signed (not force)

12/03/2013

01/03/2016

18/06/2013

08/04/2014

02/03/2018

28/02/2018

24/01/2017

08/10/1996

02/02/2011

03/11/2016

01/06/2016

23/06/2000

30/04/2014

19/12/1999

11/03/2011

22 Tunisia

25 Zambia

27/12/2017

28/07/2018

Signed (not force) Signed (not force)

Source: Author's UNCTAD's Website

Annex C Turkey-Africa Bilateral Investment Treaties By Year of Conclusion Year 2018

2015 2014

2010 2009 2001-2008 1991-2000

Treaty Concluded Zambia (28/07/2018) Mali (02/03/2018) Mauritania (28/2/2018) Burundi (14/6/2017) Chad (26/12/2017) Mozambique (24/01/2017) Tunisia (27/12/2017) Rwanda (03/11/2016) Somalia (01/06/2016) C6te d'Ivoire (29/02/2016) Ghana (01/03/2016) No BITs Kenya (08/04/2014) Sudan 30/04/2014 (N) Benin (11/12/2013) Djibouti (25/09/2013) Gambia (12/03/2013) Guinea (18/06/2013) Mauritius (07/02/2013) Gabon (18/07/2012) Cameroon (24/04/2012) Tanzania (11/03/2011) Nigeria (02/02/2011) Senegal (15/06/2010) Libya (25/11/2009) No BITs Ethiopia (16/11/2000) South Africa (23/06/2000) Sudan (19/12/1999) Algeria (03/06/1998) Morocco (08/04/1997) Nigeria (08/10/1996) Egypt (04/10/1996)

Tunisia (29/05/1991)

Source: Author's Compilation from UNCTAD's Website

Annex I Tuirkev

General Exception

Security Exception

Algeria (1998) Cameroon (2012) Cote D'Ivoire (2016) Egypt (1997) Ethiopia (2000) Gabon (2012) Gambia (2013) Ghana (2016) Kenya (2014) Libya (2009) Morocco (1997) Nigeria (1996) Nigeria (2011) Rwanda 2016 Senegal 2010 South Africa

Social

Corporate Responsibility/Investor Accountability No

(2000) Sudan (1999) Tunisia (1994)724 Tanzania (2011) Source: Author's Compilation from Information Available on UNCTAD's Website

Annex E Turkey-Africa BITs: Termination, Consultation, and Amendment

Initial Term 10

Survival clause 10

Algeria (1998) Cameroon (2012) Cote D'Ivoire (2016) Egypt (1997) Ethiopia (2000) Gabon (2012) Gambia (2013) Kenya (2014) Libya (2009) Morocco (1997) Nigeria (1996)

Consultation

Amendment

Nigeria (2011) Rwanda (2016) Senegal (2010) South Africa (2000) Sudan (1999) Tunisia (1994) Tanzania (2011) Ghana (2016) Source: Author's UNCTAD's Website

Compilation from

--- FOOTNOTES ---

ABSTRACT

This Article offers a critical and penetrating insight into the bilateral investment treaties (BITs) between Turkey and countries in Africa. Since 2003, Turkey has concluded BITs with twenty-eight countries in Africa. This Article seeks answers to some very important questions. In the BITs between Turkey and countries in Africa, is Turkey merely conforming to the norms and standards established by Western countries, or is Turkey changing these norms in fundamental ways? Compared to BITs between Western nations and countries in Africa, are towards sustainable Turkey-Africa BITs more oriented development and, if so, in what respects? In what ways are emerging market economies such as Turkey transforming the global economic landscape and international economic law?

This Article fills an important gap in the literature on international investment law and the role of emerging market economies in the global economic system. Thus, although focused on Turkey-Africa investment relations, this Article sheds important light on three broader issues. First, this Article offers a glimpse into the way emerging market economies are using and sometimes transforming international economic law. Second, this Article takes on one of the most important issues in the international economic international investment law-and examines how different stakeholders are grappling with this crisis. Third, this Article sheds important light on the dynamics of South-South economic relations and how countries in Africa are moving beyond traditional (Western) partners and are engaging or attempting

today-the crisis

law

* E.J. Ball Professor of Law, University of Arkansas School of Law. Arkansas Bar Foundation Professor (2014-2016), University of Arkansas School of Law. Affiliate Faculty Member, Department of African and African American Studies, Fulbright College of Arts and Science, University of Arkansas School of Law. S.J.D., Harvard Law School.

VANDERBILT JOURNAL OF TRANSNATIONAL JAW

1. 11.

TABLE OF CONTENTS

INTRODUCTION

.......................................

TURKEY-AFRICA RELATIONS: BACKGROUND AND ECONOMIC DIMENSIONS A.

III.

TURKEY-AFRICA RELATIONS: EMERGING LEGAL AND INSTITUTIONAL FRAMEWORK..

..........................

IV.

........................................

V.

VI.

..................... TURKEY-AFRICA BILATERAL INVESTMENT TREATIES: A CRITIQUE

...........................................

4.

Sustainable Development Not Explicitly Mentioned as a Treaty ................ Objective...... Corporate Social Responsibility Ignored ....... Lack of Policy Space in "Old-Generation" BITs Legal Minefields Arising from Broad and Vague Obligations ...........

.................

...........

4. 5. 6.

7. 8.

VII.

REFORMING TURKEY-AFRICA BITS: COMPLICATING POLICY FACTORS PRACTICAL CONSIDERATIONS ......

...........

I. INTRODUCTION

All of the bilateral investment treaties involving Turkey that are publicly available can be found on the 'Investment Policy Hub' developed by the United Nations Conference on Trade and Development (UNCTAD). Altogether, Turkey has concluded 109 BITs of which seventy-seven are in force. International Investment Agreements DEV., Navigator-Turkey, https://investmentpolicy.unctad.org/international-investment-agreements/ countries/214/turkey (archived Aug. 11, 2019) [hereinafter Investment Policy Hub -Turkey].

[https://perma.cc/D8V2-YARW]

(last visited Oct.

CONFERENCE

8, 2019)

U.N.

&

2. 3.

Id. See Uche E. Ofodile, China-Africa Bilateral Investment Treaties: A Critique, 35 MICH. J. INT'L L. 131, 131 (2013); see also Uche E. Ofodile, Trade, Empires and Subjects: China-Africa Trade: A New Fair Trade Arrangement or The Third Scramble For Africa?, 41 VAND. J. TRANSNAT'L L. 505, 505 (2008).

4.

Turkey-Africa Relations, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF (last visited Sept. 8, 2019) TURK., http://www.mfa.gov.tr/turkey-africa-relations.en.mfa [https://perma.cc/83EJ-WWQK] (archived Aug. 11, 2019). The deepening relationship between Turkey and countries in Africa has been noted in some quarters. See also 5, 2009, Patrick Seale, The Rise and Rise of Turkey, N.Y. TIMES, Nov. https://www.nytimes.com/2009/11/05/opinion/05iht-edseale.html 2019); Ottoman Dreaming, [https://perma.cc/LU8H-SFSHI 3/25/ottomanECONOMIST, Mar. 27, 2010, https://www.economist.com/europe/2010/0 (archived Aug. 11, 2019); Turkish Foreign dreaming [https://perma.cclEM5Z-B83W] Policy, The Great Mediator, ECONOMIST, Aug. 21, 2010, https://www.economist.com/ (archived Aug. europe/2010/08/19/the-great-mediator 11, 2019); Turkish economy gets Mobius nod of approval, BUS. REP., July 30, 2010, https://www.iol.co.za/business-report/economy/turkish-economy-gets-mobius-nod-of(archived Aug. 11, 2019); Owen approval-691144 Matthews, Ankara in the Middle: Once an unquestioning U.S. ally, and at odds with most of its neighbors, Turkey is now forging a new foreign policy, with itself at the very center, 156 NEWSWEEK INT'L, Aug. 2, 2010. Seale, supra note 4. Ottoman Dreaming, supra note 4.

[https://perma.cclNVN2-KUDN]

[https://perma.cclHY53-PJC7]

5. 6.

16.

International Investment Agreements Navigator-Japan, U.N. CONFERENCE ON TRADE & DEV., https://investmentpolicy.unctad.org/international-investmentagreements/countries/105/japan (last visited July 10, 2019) [https://perma.cc/B6UW5BQA] (archived Aug. 16, 2019).

17.

Joseph Joyce, How have emerging economies transformed the global

economy?, WE FORUM (Dec. 3, 2015), https://www.weforum.org/agenda/2015/12/how[https://perma.cc/GYL9have-emerging-economies-transformed-the-global -economy/ DMAK] (archived Aug. 11, 2019); see also Tarun Khanna & Krishna G. Palepu, How to 2010, define http://www.forbes.com/2010/05/27/winning-in-emerging-markets-opinionsbookexcerpts-khanna-palepu.htm1 [https://perma.cc/U5SJ-LFXB] (archived Aug. 11, 2019).

emerging

markets,

FORBES,

May

27,

18. Khanna & Palepu, supra note 17. 19.

Peter Gammeltoft, Emerging multinationals: outward FDI from the BRICS countries, 4 INT'L J. TECH. & GLOBALISATION 1, 5-22 (2008); Peter Gammeltoft & Ari Kokko, Introduction: Outward foreign direct investment from emerging economies and INT'L J. TECH. LEARNING, national development strategies: Three regimes, 6 INNOVATION & DEv. 1, 1-20 (2013); Andrea Goldstein, Multinational Companies from Emerging Economies Composition, Conceptualization & Direction in the Global Economy, 45 INDIAN J. INDUS. REL. 137, 137 (2009).

20.

GLOBAL ECONOMIC PROSPECTS: THE TURNING OF THE TIDE, WORLD BANK

(2018).

21.

See generally Jonathan Woetzel, Outperformers: High-Growth Emerging Economies and the Companies that Propel Them, McKINSEY & CO. 1 (Sept. 2018), https://www.mckinsey.com/featured-insights/innovation-and-growth/outperformershigh-growth-emerging-economies-and-the-companies-that-propel-them [https://perma.cc/5URY-ULGF] (archived Aug. 11, 2019).

22. U.N. CONFERENCE ON TRADE & DEV., WORLD INVESTMENT REPORT 2014-

INVESTING IN THE SGDS: AN ACTION PLAN, U.N. Doc. UNCTADIWIR/2014, U.N. Sales No. E.14.II.D.1 (2014); U.N. CONFERENCE ON TRADE & DEV., WORLD INVESTMENT REPORT 2015: REFORMING INTNERNATIONAL INVESTMENT GOVERNANCE, U.N. Sales No. E.15.II.D.5 (2015).

23. MCKINSEY & CO., PLAYING TO WIN: THE NEW GLOBAL COMPETITION FOR

CORPORATE PROFITS 1, 41 (McKinsey Glob. Inst. 2015).

24. 25. 26.

ICSID News Release, May

Id. Id. In May 2007, Bolivia denounced the ICSID Convention and became the first state in history to do so. See Bolivia Submits a Notice under Article 71 of the ICSID Convention, 2007, www.worldbank.org/icsid [https://perma.cclV69H-GGFB] (archived Aug. 16, 2019). Countries like India, South Africa and Indonesia are taking steps to terminate most of their BITs. In 2017, India sent termination notices to as many as 58 countries, including EU states. See India's Bilateral Investment Pact Under Cloud, Bus. LINE 2018), https://www.thehindubusinessline.com/economy/indias-bilateral-investment-pactsunder-cloud/article9625580.ece 2019).

[https://perma.cc/2CAZ-NUGN]

(Jan.

16,

15,

27. On January 21, 2014, the EU Trade Commissioner Karel De Gucht announced plans "to pause" investor protection and ISDS portion of the Transatlantic Trade and Investment Partnership (T-TIP). In March 2014, the European Commission launched an "online" public consultation on how to improve the system. In 2015, following the public consultation, the EU Trade Commissioner concluded that the consultation showed among other things that "[t]he vast majority of [international investment agreements] do not include the kind of guarantees that the EU would like to see." See Improving. ISDS to Prevent Abuse-Statement by EU Trade Commissioner Karel De Gucht on the Launch of a Public Consultation on Investment Protection in TTIP, EUROPEAN COMM'N (2014); see also Report Presented Today: Consultation on Investment Protections in EU-US Trade Talks, EUROPEAN COMM'N (2015); Questions and Answers: Public Online Consultation on Investor Protection in TTIP, EUROPEAN COMM'N (2014).

28.

Since 2014, Indonesia has progressively terminated each of the sixty-seven BITs it has signed since the late 1960s. See Investment Treaty Hub -Indonesia, U.N. CONFERENCE ON TRADE & DEV., https://investmentpolicy.unctad.org/internationalinvestment-agreements/countries/97/indonesia 2019) [https://perma.cc/YY7B-JPGL] (archived Aug. 11, 2019). Although Indonesia has terminated many of its BITs, it does not appear to be Indonesia's intention to completely abandon the IIA regime. See Antony Crockett, The Termination of Indonesia's BITs: Changing the Bathwater, But Keeping the Baby?, 18 J. WORLD INV. & TRADE 836, 836 (2017).

29. On October 19, 2018, the Dutch government adopted Netherland's new model BIT. See Model Agreement on Encouragement and Reciprocal Protection of Investments (May 16, 2018), https://www.internetconsultatie.nl/investeringsakkoorden [https://perma.cclV6EJ-QZM5] (archived Oct. 8, 2019). After a multi-year BIT review, India revamped its IIA regime. In 2016, India released a new Model BIT. See Model Text INDIA, http://www.dea.gov.in/sites/default/files/ ModelBITAnnex_0.pdf (last visited Sept. 8, 2019) [https://perma.cc/ASQ6-ACE9] (archived Sept. 11, 2019) [hereinafter 2016 Indian Model BIT]; see also Burghard Ilge & Kavaljit Singh, India Overhauls Its Investment Treaty Regime, FIN. TIMES, July 15, 2016, https://www.ft.com/content/53bd355c-820334af-9c27-7bf990a447dc [https://perma.cc/A326-7XMF] (archived Aug. 11, 2019).

Investment Treaty 2016, GOV'T OF

Indian Bilateral

30.

31.

for reform);

See UNCTAD's REFORM PACKAGE FOR THE INTERNATIONAL INVESTMENT REGIME, U.N. CONFERENCE ON TRADE & DEV. 7-8 (2018) (discussing the crisis in international investment law, the push for reform over the past several years, and the INVESTMENT REPORT 2015: REFORMING options INTERNATIONAL INVESTMENT GOVERNANCE, supra note 22. Investment Policy Framework

for Sustainable Development, U.N. CONFERENCE ON TRADE & DEV. (2012); U.N. CONFERENCE ON TRADE & DEV., WORLD INVESTMENT REPORT 2012: TOWARDS A NEW GENERATION OF INVESTMENT POLICIES, U.N. Doc. UNCTADIWIR/2012, U.N. Sales No. E.12.II.D.3 (2012).

see also WORLD

32. G20 agrees Guiding Principles for Global Investment Policymaking, ORG. 20[https://perma.cc/24DT-

FOR EcoN. COOPERATION & DEV. (Nov. 11, 2016), https://www.oecd.org/investment/g agrees-principles-for-global-investment-policymaking.htm A4FL] (archived Aug. 11, 2019).

33. OECD ET AL., African Economic Outlook 2011, in AFRICA AND ITS EMERGING PARTNERS (2011); see also Uche Ewelukwa Ofodile, India-Africa Trade and Investment: Ten Critical Questions Africans Should be Asking Their Leaders, AILA BLOG (Apr. 15, 2016), questions-africans-should-be-asking-their-leaders-by-dr-uche-ewelukwa-ofodile-sjdharvard/ [https://perma.cc/4QHQ-4ZJ2] (archived Aug. 16, 2019).

http://blogaila.com/2016/04/15/india-africa-trade-and-investment-ten-critical-

34. Africa's Emerging Partnerships, ORG. FOR ECON. COOPERATION & DEV.

OBSERVER (2011), http://oecdobserver.org/news/fullstory.php/aid/3558/Africaemerging_ partnerships.html [https://perma.cc/2QMT-588T] (archived Aug. 11, 2019).

35. Uche Ewelukwa Ofodile, South-South Trade and Investment: The Good, the

Bad and the Ugly -African Perspectives, 20 MINN. J. INT'L L. 513, 513-87 (2011).

92s-

36.

Joseph Joyce, How have emerging economies transformed the global

(Dec. 3, 2015), https://www.weforum.org/agenda/2015/12/how-

economy?, WE FoRUm have-emerging-economies-transformed-the-global-economy/ [https://perma.cc/EAX72AKA] (archived Aug. 11, 2019) (arguing that "In recent decades the global economy has been transformed by the rise of the emerging market economies. Their growth lifted millions out of poverty and gave their governments the right to call for a larger voice in discussions of international economic governance.").

37. Tanvi Kothari, Masaaki Kotabe & Priscilla Murphy, Rules of the Game for Emerging Market Multinational Companies from China and India, 19 J. INT'L MGMT. 276, 276-99 (2013).

38. Africa's Emerging Partnerships, supra note 34. 39. The Sustainable Development Goals (SDGs) are a collection of 17 global goals that the United Nations General Assembly set in 2015 and are part of Resolution 70/1 of the United Nations General Assembly. The goals which are set forth in Paragraph 54 of Resolution A/RES/70/1 cover social and economic development issues including poverty, hunger, health, education, global warming, gender equality, water, sanitation, energy, urbanization, environment, and social justice. See G.A. Res. 70/1 (Oct. 21, 2015).

40. At a historic UN Summit in September 2015, world leaders adopted the 2030 Agenda for Sustainable Development and its seventeen Sustainable Development Goals (SDGs). The SDG goals went into effect in January 2016. The SDGs are enshrined in UN Resolution 70/1 of the United Nations General Assembly. See id.

41.

Investment Policy Framework for Sustainable Development, supra note 31; WORLD INVESTMENT REPORT 2012: TOWARDS A NEW GENERATION OF INVESTMENT POLICIES, supra note 31.

42.

Investment Policy Hub -Turkey, supra note 1.

43. Agreement Between the Government of the Republic of Turkey and the Government of the Federal Republic of Nigeria Concerning the Reciprocal Promotion 1996, and https://investmentpolicy.unctad.org/international-investment-agreements/treaty2019) 11, files/5196/download [hereinafter Turkey-Nigeria BIT (1996)]. Agreement Between the Government of the Republic of Turkey and the Government of the Federal Republic of Nigeria Concerning the Reciprocal Promotion and Protection of Investments, Nigeria-Turk., Feb. 2, 2011, https://investmentpolicy.unctad.org/international-investment-agreements/treaty11, files/2109/download [hereinafter Turkey-Nigeria BIT (2011)].

[https://perma.cc/G5BR-M5RL]

[https://perma.cc/6SSQ-FJEH]

Nigeria-Turk.,

Oct.

44. Agreement Between the Government of the Republic of Turkey and the Republic of the Sudan Concerning the Reciprocal Promotion and Protection of Investments 1999, Sudan-Turkey, Dec. 19, 1999, https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/3596/download RDG2-7ZQN] (archived Sept. 11, 2019) [hereinafter Turkey-Sudan BIT].

[https:f/perma.cc/

45. Agreement Between the Government of the Republic of Turkey and the the Reciprocal Promotion and Protection of

Republic of Tunisia Concerning Investments 1991, Tunis.-Turkey, May 29, 1991, https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/2350/download Z9DA-NGQ3] (archived Sept. 11, 2019) [hereinafter Turkey-Tunisia BIT].

46. 47. 48.

See infra Annexes A, B. Investment Policy Hub -Turkey, supra note 1. In 2018, Turkey concluded BITs with Mali, on March 2, 2018, and

Mauritania, on February 28, 2018. See id.

49.

In 2017, Turkey concluded BITs with Burundim on June 14, 2017, Chad, on February 26, 2017, Mozambique, on January 24, 2017, and Tunisia, on December 27, 2017. See id. 50.

In 2016, Turkey concluded BITs with Rwanda, on November 3, 2016, Somalia, on June 1, 2016, C6te d'Ivoire, on February 29, 2016, and Ghana, on March 1, 2016. See id. 51.

In 2014, Turkey concluded BITs with Kenya, on April 8, 2014, Sudan, on

April 30, 2014. See id.

52.

In 2013, Turkey concluded BITs with Djibouti, on September 25, 2013, Gambia, on March 12, 2013, Guinea, on June 18, 2013, and Benin, on December 11, 2013. See id. 53.

In 2011, Tanzania concluded BITs with Tanzania, on March 11, 2011, and

Nigeria, on February 2, 2011. See id.

54. Agreement Between the Government of the Republic of Turkey and the Arab Republic of Egypt Concerning the Reciprocal Promotion and Protection of Investments, Egypt-Turk., Oct. 4, 1996, https://investmentpolicy.unctad.org/

international-investment-agreements/treaty-files/ 117/download LR8C-NLPUJ (archived Sept. 11, 2019) [hereinafter Turkey-Egypt BIT].

55. Agreement Between Republic of Turkey and the Federal Democratic the Reciprocal Promotion and Protection of

Republic of Ethiopia Concerning Investments, Eth.-Turk., Nov. 16 2000, https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/1179/download 4Z82-NLX7] (archived Sept. 11, 2019) [hereinafter Turkey-Ethiopia BIT].

56. Agreement between the Republic of Turkey and the Great Socialist People's Libyan Arab Jamahiriya on the Reciprocal Promotion and Protection of Investments, Libya-Turk., Nov. 25, https://investmentpolicy.unctad.org/internationalinvestment-agreements/treaty-files/5021/download [https://perma.cc/99W2-PU7R] (archived Sept. 11, 2019) [hereinafter Turkey-Libya BIT].

2009,

57. Agreement Between the Government of the Republic of Turkey and the Government of the Kingdom of Morocco Concerning the Reciprocal Promotion and Protection 1997, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/2048/download 11, [hereinafter Turkey-Morocco BIT].

[https://perma.cc/2SKF-P8CP]

Morocco-Turk.,

58. Agreement Between the Government of the Republic of Turkey and the Government of the Federal Republic of Senegal Concerning the Reciprocal Promotion and 2010, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/2247/download 11, [hereinafter Turkey-Senegal BIT].

[https://perma.cc/3PWN-43U7]

Sen.-Turk.,

June

15,

59. Turkey-Tunisia BIT, supra note 45. 60. Agreement Between the Government of the Republic of Turkey and the Government of the Democratic and Popular Republic of Algeria Concerning the Reciprocal Promotion and Protection of Investments, Alg.-Turk., June 3, 1998, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/60/download [https://perma.cc/X46N-ARWP] (archived Sept. 11, 2019) [hereinafter Turkey-Algeria BIT].

61. Agreement Between the Government of the Republic of Turkey and the Government of the Republic of Cameroon Concerning the Reciprocal Promotion and Protection 2012, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/597/download [https://perma.cc/N4ZY-F762] (archived Sept. 11, 2019) [hereinafter Turkey-Cameroon BIT].

Cameroon-Turk.,

62. Agreement Between the Government of the Republic of Turkey and the Government of the Gabonese Republic Concerning the Reciprocal Promotion and Protection 2012, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/1307/download 11, [hereinafter Turkey-Gabon BIT].

[https://perma.cc/QU83-NQCY]

Gabon-Turk.,

July

18,

63. Agreement Between the Government of the Republic of Turkey and the Government of the Republic of the Gambia Concerning the Reciprocal Promotion and Protection 2013, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/3345/download 11, [hereinafter Turkey-Gambia BIT].

[https://perma.cc/SWC7-G853]

Gam.-Turk.,

12,

64. Turkey-Nigeria BIT (2011), supra note 43. 65. Agreement Between the Government of the Republic of Kenya and the Government of the Republic of Turkey Concerning the Reciprocal Promotion and Protection 2014, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-

Kenya-Turk.,

files/5543/download [hereinafter Turkey-Kenya BIT].

[https://perma.cclRT8X-QVP8]

66. Agreement Between the Government of the Republic of Rwanda and the Government of the Republic of Turkey Concerning the Reciprocal Promotion and 2016, Protection https://investmentpolicy.unctad.org/international-investment-agreements/treaty11, files/5415/download [hereinafter Turkey-Rwanda BIT].

[https://perma.cc/AB4E-ENE4]

Rwanda-Turk.,

Nov.

3,

23,

67. Agreement Between Republic of Turkey and the Republic of South Africa Concerning the Reciprocal Promotion and Protection of Investments, S. Afr.-Turk., https://investmentpolicy.unctad.org/internati6nal-investment2000, June agreements/treaty-files/2279/download 11, 2019) [hereinafter Turkey-South Africa BIT]. 68. Turkey-Sudan BIT, supra note 44. 69. Agreement Between the Government of the Republic of Turkey and the Government of the United Republic of Tanzania Concerning the Reciprocal Promotion 2011, and https://investmentpolicy.unctad.org/international-investment-agreements/treaty11, files/2342/download [hereinafter Turkey-Tanzania BIT].

[https://perma.cclEK76-K3C3]

[https://perma.cc/LR72-N6J2]

Tanz.-Turk.,

Emerging market economies are important

for a number of reasons including: contribution to the world GDP as a result of rising productivity, income and demand, contribution to the achievement of the sustainable development goals, and foreign direct investment in other countries. See Woetzel, supra note 21, at 5 ("Collectively, the outperformers have been the engine for lifting about one billion people out of extreme poverty, helping to meet a key United Nations Sustainable Development Goal. Indeed, rising prosperity in these countries has not just reduced poverty, but also enabled the emergence of a new wave of middle and affluent classes."); see also Hal Hill & Juthathip Jongwanich, Emerging East Asian Economies as Foreign Investors: An Analytical Survey, 59 SING. ECON. REV. 1, 1-26 (2014) (discussing the growing role of emerging market economies in foreign investment).

70.

3,

II. TURKEY-AFRICA RELATIONS: BACKGROUND AND ECONOMIC

DIMENSIONS

71. Mehmet Ozkan & Birol Akgiin, Turkey's Opening to Africa, 48 J. MOD. AFR. STUD. 525, 525--46 (2010) [hereinafter Ozkan & Akgiin] (describing Turkey's relations with Africa as falling into three periods).

72. Abdinor Hassan Dahir, How effective is Turkey's Africa initiative?, DAILY

SABAH (Sept. 19, 2017), https://www.dailysabah.com/op-ed/2017/09/19/how-effective-isturkeys-africa-initiative 11, 2019) ("Turkey has had historical ties with Africa that date back to the 15th and 16th centuries.").

[https://perma.cc/GZ2P-DCD7]

73. Ozkan & Akgdin, supra note 71, at 530 (observing that the Turks' relations

with Africa go back centuries).

74.

See Ottoman Dreaming, supra note 4; see generally Stanford J. Shaw, The Apogee of Ottoman Power, 1451-1566, in 1 HISTORY OF THE OTTOMAN EMPIRE AND MODERN TURKEY 55 (Cambridge Univ. Press 1976).

75.

Shaw, supra note 74.

76. 77. Tom Wheeler, Turkey and South Africa: Development of Relations 18602005, SAIIA Rep. No. 47 (observing that 'There is little of substance in South AfricanTurkish relations between 1922 and the late 1980s.").

78. Dahir, supra note 72. 79. 80. Ozkan & Akgin, supra note 71, at 531 (noting that in the republican era,

Turkey-Africa relations were down-graded to the lowest level).

Id. Id. Turkey-Africa Relations, supra note 4.

81. 82. 83. 84. Dahir, supra note 72 ("One notable project that has marked a turning point in Africa-Turkey economic relations was the launching of 'The Strategy Development of Economic Relationships with Africa' in 2003.").

The year 2008 marked a significant year in Turkey-Africa relations. In 2008, the AU declared Turkey a strategic partner of the Continent.88 The first ever "Turkey-Africa Cooperation Summit" was held in 2008.89 The "Second Turkey-Africa Partnership Summit" was held in 2014.90 The Summit had the theme of "A New Model of Partnership for the Strengthening of Sustainable Development and Integration."' The Summit adopted the Declaration and Joint Implementation Plan for the Period of 2015-2019.92 The third Turkey-Africa Partnership Summit will be held in 2019.93 In between the summits, high-level official meetings have occurred.94

B. Economic Dimensions

Economic considerations play a major role in Turkey's Africa policy.95 One visible dimension of Turkey's economic activism is Ankara's interest in entering new markets beyond those in the West and in Turkey's immediate neighborhood.96 Turkey's involvement in

Turkey-Africa Relations, supra note 4. Id.

85. 86. 87. Ozkan & Akgfin, supra note 71, at 533. 88. A.U. Dec. 397 (XII), A.U. Doc. EX.CL/374 (XII), at 1 (2007). 89. 90.

Turkey-Africa Relations, supra note 4. SECOND

PARTNERSHIP http://afrika.mfa.gov.tr/default.en.mfa (last visited Sept. 8, 2019) PNC9-XS2V] (archived Aug. 11, 2019).

TURKEY-AFRICA

SUMMIT, [https://perma.cc/

Id. Turkey-Africa Relations, supra note 4. Id.

91. 92. 93. 94. The first Turkey-Africa Cooperation High Level Official Meeting took place in December 2010. This meeting culminated the adoption of the Joint Implementation Plan of Africa-Turkey partnership the period 2010-2014 [hereinafter First Joint Implementation Plan]. The first Turkey-Africa Agriculture Ministerial Meeting and Agribusiness Forum took place in 2017.

95.

2009,

See Nicole Sobecki, Turkey seeks economic salvation in Africa, GLOB. POST, http://www.globalpost.com/dispatch/turkey/090309/turkey-seeks-

Mar. economic-salvation-africa [https://perma.cc/ED8Y-JENC] (archived Aug. 11, 2019); see Turkey-Africa Relations, supra note 4; see supra Part I (discussing the economic dimensions of Turkey-Africa Relations); see also J. Peter Pham, Turkey's Return to Africa, WORLD DEF. REV. (May 27, 2010), http://worlddefensereview.com/pham052710. shtml [https://perma.cc/W6QU-TZCE] (archived Aug. 18, 2019).

96. Hakan Fidan, A Work in Progress: The New Turkish Foreign Policy, 20 MIDDLE E. POL'Y 91, 91 (2013) (discussing the dawn of "a new era of activism" in Turkey's foreign policy that sees Turkey "increasingly assert[ing] itself as a rising actor that is determined to make a unique contribution to regional and global affairs"); see also SECOND TURKEY-AFRICA PARTNERSHIP SUMMIT, supra note 90 (noting that

"Ankara's increased interest towards the states across the Mediterranean sea and to the South was initially driven by economical reasons at large.").

97. Ozkan & Akgun, supra note 71, at 528 (describing Turkey's foreign policy in

general as being "a multi-faceted foreign policy.").

SHINN, supra note 8, at 11 (" There are conflicting figures on Turkey's

foreign direct investment in SSA.").

Turkey's Africa initiative sees six-fold rise in trade with continent, DAILY

SABAH (Feb. 27, 2018), https://www.dailysabah.comleconomy/2018/02/28/turkeys-africa[https://perma.cc/6S9D-R3M6] initiative-sees-six-fold-rise-in-trade-with-continent (archived Aug. 11, 2019).

100. Id. 101. Id. 102. Id. 103. Bilal Derso, Africa: Ethiopia Tops Turkish Investment Destinations of Africa

201801310663.

-EIC, ETHIOPIAN HERALD (Jan. 31, 2018), https://allafrica.comlstories/ html [https://perma.cc/P5G3-G5JN] (archived Aug. 11, 2019).

104. Id.; see also Turkey-Africa Relations, supra note 4 (discussing the deepening

relationship between Turkey and Ethiopia).

105. Derso, supra note 109. 106. Alexey Boguslavskiy, Turkey's Venture into Africa, RuSSIAN INT'L AFF. COUNCIL (May 22, 2017), http://russiancouncil.rulenanalytics-and-comments/analytics/ turkey-s-venture-into-africa/ [https://perma.ccIB23L-9J9P] (archived Aug. 11, 2019).

107. SHINN, supra note 8. 108. Id.

98.

99.

109. Turkey's Africa initiative sees six-fold rise in trade with continent, supra

note 99.

110. Turkey-Africa Trade and Economic Relations, MINISTRY OF TRADE, REPUBLIC OF TURK. (Sept. 4, 2018), https://www.trade.gov.tr/multinational-relations/ turkey-africa-economic-and-business-forum/turkey-africa-relations [https://perma.cc/693U-8SA2] (archived Oct. 8, 2019).

111. Turkey's Africa initiative sees six-fold rise in trade with continent, supra

note 99.

112. Id. 113. Id. 114. Turkey-Africa Partnership High Level Officials Meeting (Talking Points),

AFRICAN UNION (June 19, 2013), https://au.int/sites/default/files/newsevents/working documents/26682-wd-turkey-africa-partnership-highlevel officials meeting.pdf [https://perma.ccl9FVB-KHTX] (archived Sept. 11, 2019).

115. Relations between Turkey and the Republic of South Africa (RSA), REPUBLIC

OF TURKEY, http://www.mfa.gov.tr/relations-between-turkey-and-the-republic-of-southafrica.en.mfa (last visited Sept. 8, 2019) [https://perma.cc/778R-HESC] (archived Aug. 11, 2019) (discussing the deepening relationship between Turkey and Ethiopia).

116. Id. 117. Jeannine Hausmann, Turkey as a Donor Country and Potential Partner in Triangular Cooperation, GERMAN DEV. INST. (2014); see also Johanna Morden, Humanitarian assistance: Turkey's rise shows growing importance of emergence donors, DEVEX (July 22, 2013), https://www.devex.com/news/humanitarian-assistance-turkey-srise-shows-growing-importance-of-emerging-donors-81485 [https://perma.ccl5ZJDB6XQ] (archived Aug. 11, 2019).

118. See TURKISH COOPERATION AND COORDINATION AGENCY (TIKA), TURKISH (2014); TURKISH COOPERATION AND

DEVELOPMENT ASSISTANCE 2013 REPORT

Turkey spent US$6 billion on humanitarian aid, more than any other country except the US ($6.3 billion). Percentage-wise, Turkey's largesse-0.75% of itsl21 gross national income (GNIy-dwarfs every member of the G20 and is well ahead of No. 2, United Arab Emirates, at 0.18% of GNI. The OECD has slightly different numbers, but also shows Turkey's official development assistance (ODA), which includes humanitarian aid, as having risen sharply in the last five years.122

COORDINATION AGENCY (TIKA), TURKISH DEVELOPMENT ASSISTANCE 2014 REPORT (TIKA), TURKISH (2015); TURKISH COOPERATION AND COORDINATION AGENCY (2016); TURKISH COOPERATION AND DEVELOPMENT ASSISTANCE 2015 REPORT COORDINATION AGENCY (TIKA), TURKISH DEVELOPMENT ASSISTANCE 2017 REPORT (2018).

119. Luca Ventura, Turkey-Now Among World's Top Donor Nations, GLOB. FIN. MAG. (Oct. 2, 2017), https://www.gfmag.com/magazine/october-2017/turkey-now-amongworlds-top-donor-nations [https://perma.cc/YK7G-5CP7] (archived Aug. 11, 2019).

120. Fidan, supra note 96, at 94 (discussing Turkey's increasing participation in

development assistance and humanitarian aid).

121. SHINN, supra note 8, at 13. 122. Ventura, supra note 119. 123. SHINN, supra note 8, at 13. 124.

Id. (discussing the increase in Turkish aid to Africa from $10 million in 1985 to $31 million in 2006 and to $52 million in 2008. By the end of 2011, Turkey had undertaken 113 development assistance projects in 37 African countries).

125. Id. 126. Id. 127. Id. 128. Ozerdem, supra note 7. 129. Id.

130. Id. 131. SHINN, supra note 8. 132. See generally New Model of Partnership for the Strengthening of Sustainable

Development and Integration, SECOND AFRICA-TURKEY SUMMIT DECLARATION (2014).

133. Id. 134. Founded in 1964,

is a multilateral development finance institution with a focus on the continent of Africa. The overarching objective of the African Development Bank (AfDB) Group is to spur sustainable economic development and social progress in its regional member countries (RMCs). See Mission & Strategy, supra note 10.

the African Development Bank

135. After more than a decade negotiation to join the European Union, Turkey is not anywhere near joining the EU. In fact, Turkey's EU bid appears to have all but collapsed. Turkey's formal EU accession negotiations began in October 2005. However, in April 2017, the European Parliament called for a formal suspension of Turkey's EU membership bid. Furthermore, in September 2017, German Chancellor Angela Merkel announced that she will seek an end to Turkey's membership talks. Negotiation talks are now effectively frozen. Although Turkey remains a candidate for membership and although the Turkish Prime Minister has said the Turkey still seeks full EU membership many experts do not see the possibility of that happening anytime soon. See Factbox: Turkey's Collapsing EU membership bid, REUTERS, Sept. 4, 2017, https://www.reuters.com/article/us-germany-turkey-eu-factbox/factbox-turkeyscollapsing-eu-membership-bid-idUSKCN1BFITH (archived Aug. 11, 2019); see also Tom Batchelor, Turkey still wants 'full membership' of EU, Erdogan says, INDEPENDENT, Mar. 26, 2018, https://www.independent.co.uk/

[https://perma.cc/5G27-ANV9]

to establish diplomatic Turkey has engaged in an ambitious programme missions in SSA countries, and has encouraged the reciprocal opening of in C6te d'Ivoire and embassies in Ankara. Embassies were established Tanzania in 2009, adding to its existing missions in the [Democratic Republic of Congo], Ethiopia, Kenya, Nigeria, Senegal, South Africa and Sudan. Further embassies were opened in 2010 (in Angola, Cameroon, Ghana, Madagascar, Mali and Uganda), 2011 (The Gambia, Mauritania, Mozambique, Somalia, South Sudan, Zambia and Zimbabwe), 2012 (Burkina Faso, Gabon, Namibia and Niger) and 2013 (Chad, Guinea, Djibouti and Eritrea). When Turkey opened its embassy in Eritrea in 2013, it became the first country in the world in every country in the Horn of to have ambassadorial representation

Africa.

news/worldleurope/erdogan-turkey-eu-full-membership-european-union-commitmentpresident-a8274166.html [https://perma.cc/7SB7-CRPE] (archived Aug. 11, 2019).

[https://perma.cc/9X5K-5S3J]

136. Ryan Crocker, Hussein Ibish, Billent Aras, Saudi Arabian-Turkish Rivalry in the Middle East, 25 MIDDLE E. POL'Y (2018), https://www.mepc.org/journal/saudi(archived Oct. 21, arabian-turkish-rivalry-middle-east 2019) (discussing the growing tension between Turkey and Saudi Arabia); Turkey and 51 Iran: Bitter Friends, Bosom Rivals, CRISIS GROUP MIDDLE EAST BRIEFING N Istanbul/Tehran/Brussels, Dec. 13, 2016, https://d207landvipOwj.cloudfront.net/bO5l[https://perma.cclW5Q9-CVEP] turkey-and-iran-bitter-friends-bosom-rivals.pdf (archived Oct. 21, 2019) (observing that a profound disagreement over core interests in Iraq and Syria is putting Turkey and Iran on a major collision course); see also, Robert Malley, The Unwanted Wars: Why the Middle East Is More Combustible Than Ever, FOREIGN AFF. (2019).

137. SHINN, supra note 8, at 6. 138. Id. 139. Id. 140. Id. 141. Id. 142. Turkey to open 5 new embassies in African countries, DAILY SABAH (Oct. 31,

2017),

https://www.dailysabah.com/diplomacy/2017/11/01/turkey-to-open-5-new-

embassies-in-african-countries 2019).

[https://perma.cc/H9SM-NEVQ]

143. Turkey aims to open more embassies in Africa, says Erdogan, HURRIYET DAILY NEWS (Sept. 7, 2018), http://www.hurriyetdailynews.com/turkey-aims-to-openmore-embassies-in-africa-says-erdogan- 136561 [https://perma.cc/DHW4-FJTW] (archived Aug. 11, 2019) (discussing Turkey's plan to increase the number of it embassies in Africa from 41 to 54).

144. Gabon to open embassy in Ankara in 2015, HURRIYET DAILY NEWS (May 12,

2015), 82303 [https://perma.cclL922-HR5K] (archived Aug. 11, 2019).

http://www.hurriyetdailynews.com/gabon-to-open-embassy-in-ankara-in-2015-

145. Boguslavskiy, supra note 106 (discussing Erdokan's numerous visits to the

African continent). 146. Id. 147. Id. at 7. 148. Id.; Boguslavskiy, supra note 106. 149. Kgalema Motlanthe, Motlanthe on Africa Day, POLITICSWEB (May 25, 2010),

http://www.politicsweb.co.zalpoliticsweb/view/politicsweb/en/page71656?oid=177864&s n=Detail [https://perma.cc/2MPC-2T7C] (archived Aug. 18, 2019).

150. Turkey-Africa Relations, supra note 4. 151. A number of emerging economies are also non-African members of the AfDB including China, India, Saudi Arabia, Brazil. See Member Countries, AFRICAN DEV. BANK GROUP, https://www.afdb.org/en/about-us/corporate-information/members/ (last visited Sept. 8, 2019) [https://perma.cclDK5M-Q8MB] (archived Aug. 11, 2019).

FOREIGN AFFAIRS, REPUBLIC OF TURK.

152. African Union-Turkey Partnership Joint Implementation Report, 2015-2017, 2018),

MINISTRY http://www.mfa.gov.tr/african-union---turkey-partnership-joint-implementation[https://perma.cc/Y86Q-KRYN] report -2015-2017--12-february-2018_en.en.mfa (archived Oct. 8, 2019) (providing a report of the African Union-Turkey Partnership Implementation Plan, 2015-2019).

(Feb.

12,

153. Id. 154. Recep Tayyip Erdokan, President of the Republic of Turkey, Address at Second Turkey-Africa Partnership Summit (Nov. 21, 2014) (transcript available in the Second Turkery-Africa Partnership Summit website).

155. Turkey-Partnership Overview,

AFRICAN

DEV.

https://www.afdb.org/en/countries/non-regional-member-countries/turkey Sept. 8, 2019) [https://perma.cc/4KM7-5NAC] (archived Aug. 11, 2019).

156. Id. 157. Id. Id. 158. 159. Id. 160. Id.

BANK

GROUP, (last visited

III. TURKEY-AFRICA RELATIONS: EMERGING LEGAL AND INSTITUTIONAL FRAMEWORK

23 24-february-

regarding-the-high_1evel-partnership-forum-on-somalia-to-be-held-on2016-in-istanbul.en.mfa [https://perma.cc/C98D-GK2J] (archived Aug. 11, 2019).

167. Turkey-Africa Relations, supra note 4 (noting that Turkey, under its G20 Presidency in 2015, organized events in line with the Africa's "Agenda 2063." In this regard, the High Level Conference on Access to Energy in Sub-Saharan Africa was held on October 1, 2015 for the first time under G20 framework).

168. Id.; see also G20 2015 Turkey, the Group Development Agenda, and SubSaharan Africa Representation1, HEINRICH BOLL STIFTUNG ISTANBUL (June 23, 2016), https://tr.boell.org/de/2017/06/23/g20-2015-turkey-group-development-agenda-and-subsaharan-africa-representation1 2019).

[https://perma.cclQK8K-R3UT]

169. G-20, MINISTRY

TURK., http://www.mfa.gov.tr/g-20-en.en.mfa (last visited Sept. 8, 2019) [https://perma.ccl8J5V -WC4J] (archived Aug. 19, 2019).

FOREIGN AFFAIRS,

REPUBLIC

170. See generally W. Michael Reisman, The Concept and Functions of Soft Law in International Politics, in 1 ESSAYS IN HONOUR OF JUDGE TASLIM OLAWALE ELIAS 135, 135 (Bola A. Ajibola & Emmanuel G. Bello eds., 1992); Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. LEGAL ANALYSIS 171, 172 (2010) ("Thus, soft law is most commonly defined to include hortatory, rather than legally binding, obligations."); Timothy Meyer, Soft Law as Delegation, 32 FORDHAM INT'L L.J. 888, 890 (2009) (noting that "soft legal obligations are those international obligations that, while not legally binding themselves, are created with the expectation that they will be given some indirect legal effect through related binding obligations under either international or domestic law.").

171. Agreement Establishing a Free Trade Area Between the Arab Republic of

Egypt and the Republic of Turkey, Egypt-Turk., Dec. 27, 2005.

172. Free Trade Agreement Between the Kingdom of Morocco and the Republic of

Turkey, Morocco-Turk., Apr. 7, 2004.

173. Free Trade Agreement Between the Republic of Turkey and the Republic of

Tunisa, Tunis.-Turk., Nov. 25, 2004.

174. Free Trade Agreement Between the Republic of Turkey and the Republic of

Mauritius, Turk.-Mauritius, Sept. 9, 2011.

175. Nail Ersoy, Free Trade Agreements of Turkey, Republic of Turkey, MINISTRY (Sept. 2013), http://yoikk.gov.tr/upload/IDB/

OF ECONOMY, REPUBLIC OF TURK. FTAsCompatibilityMode.pdf [https://perma.cc/3UCE-2EFB] (archived Sept. 8, 2019).

176. The Istanbul Declaration on Africa-Turkey Partnership: Solidarity and Partnership for a Common Future, Second Turkey-Africa Partnership Summit, Ministry of Foreign Affairs Turkey (adopted Aug. 19, 2008) [hereinafter Instanbul Declaration]. According to Turkey's Ministry of Foreign Affairs, forty-nine African countries participated in the "Turkey-Africa Cooperation Summit" which was held August 18-21, 2008. See Turkey-Africa Relations, supra note 4.

177. Framework of Cooperation for Africa-Turkey Partnership, Second TurkeyAfrica Partnership Summit, Ministry of Foreign Affairs Turkey (adopted Aug. 19, 2008) [hereinafter Framework of Cooperation 2008].

178. First Joint Implementation Plan, supra note 94. 179. Joint Declaration and Joint Action Plan, First Ministerial Review Conference of the Africa-Turkey Partnership, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., Dec. 16, 2011, http://www.mfa.gov.tr/the-first-ministerial-reviewconference-of-the-turkey-africa-cooperation-december- 16-2011.en.mfa [https://perma.cc/4EKQ-75GR] (archived Oct. 23, 2019).

180. Declaration, Second Africa-Turkey Summit, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., Nov. 21, 2014, http://afrika.mfa.gov.tr/data/21-november-2014summit-declaration.pdf 8, 2019) [hereinafter Malabo Declaration]. According to Turkey's Ministry of Foreign Affairs,

[https://perma.cc/96VY-FM4H]

almost 30 African countries participated in the Malabo Summit held in November 2019. See Turkey-Africa Relations, supra note 4.

181. Joint Implementation Plan of Africa-Turkey Partnership 2015-2019, Afr.Turk., Nov. 21 2014, http://afrika.mfa.gov.tr/data/turkey-africa-joint-implementationplan-2015-2019.pdf [https://perma.cc/7NDZ-R6U7] (archived Sept. 8, 2019) [hereinafter Second Joint Implementation Plan].

182. Turkey-Africa Relations, supra note 4. 183. Given rising Turkish investments in Africa and construction deals, it stands to reason that the investments and contruction projects are all on the basis of binding contracts between Turkish companies and governments in Africa. Id.

184. Turkey Sets Up Largest Overseas Army Base in Somalia, AL JAZEERA (Oct.

1, 2017), https://www.aljazeera.com/news/2017/10/turkey-sets-largest-overseas-armybase-somalia-171001073820818.html [https://perma.cc/2ABN-2SRY] (archived Aug. 19, 2019) (observing that the military base "cost about $50 million, will train 10,000 Somali troops and has the capacity to train at least 1,500 soldiers at a time.").

185. See Istanbul Declaration, supra note 176. 186. See Malabo Declaration, supra note 178. 187. See Istanbul Declaration, supra note 176. 188. See Malabo Declaration, supra note 178, at 4 ("[S]trengthen the follow up mechanism which was established by the Framework of Cooperation for Africa-Turkey Partnership, done in Istanbul on 19 August 2008; through regular and intensified contacts. ..").

9 76

189. Istanbul Declaration, supra note 176. The information about the number of countries that participated in the the Turkey-Africa Cooperation Summit in 2008 is from Turkey's Ministry of Foreign Affairs. Whether the countries that participated were represented at by their heads of state, at the ministerial level, or by lower-level officials is hard to tell. See Turkey-Africa Relations, supra note 4. 190. Framework of Cooperation 2008, supra note 177. 191. Istanbul Declaration, supra note 176. 192. See Second Joint Implementation Plan, supra note 179. 193. First Joint Implementation Plan, supra note 94.

(a) "the Africa-Turkey Summit to be held every five years in Africa and in Turkey, on a rotational basis";

(b) "[a] Ministerial Review Conference that will meet every third year in the period between Summits to assess and evaluate the progress of implementation of the Programme of Action and prepare for the Summit meeting";

(c) "[a] meeting of Senior Officials that will take place twice in between two summits to review the progress of implementation of agreed programs and projects, disseminate information about cooperation arrangements, propose for the Ministerial Review to and prepare new initiatives, and report

Conference."

IV. TURKEY IN AFRICA: FOREIGN POLICY TOOLS AND INSTITUTIONS

194. Second Joint Implementation Plan, supra note 179, at 1 17(1)-(3). 195. Turkey-Africa Relations, supra note 4 (discussing Turkey's engagement with

countries in Africa). 196. Id. 197. Coined by Joseph S. Nye back in the 1980s, the term soft power generally refers to the ability of a country to persuade other countries to do what it wants without resorting to military force or coercion. Agents of soft power are typically companies, foundations, universities, religious organizations, and other institutions of civil society. See Joseph S. Nye, Jr., Soft Power, 80 FOREIGN POL'Y 153, 167 (1990). To Nye, proof of power "lies not in resources but in the ability to change the behavior of states." Id. at 155. He argues that today, "[t]he ability to affect what other countries want tends to be associated with intangible power resources such as culture, ideology, and instritutions." Id. at 166-67. Nye defines 'co-optive power' as "getting others to want what you want" and identifies soft power resources to include cultural attraction ideology, and international institutions. According to Nye:

Soft co-optive power is just as important as hard command power. If a state can make its power seem legitimate in the eyes of others, it will encounter less resistance to its wishes. If its culture and ideology are attractive, others will more willingly follow. If it can establish international norms consistent with its society, it is less likely to have to change. ge. If it can support institutions that make other states wish to channel or limit their activities in ways the dominant state prefers, it may be spared the costly exercise of coercive or hard power. Id. at 167.

With soft power, some countries try to shape the long-term attitudes and preferences of people of other nations. Whether successful states need both hard and soft power and whether soft power is effective are continuing debate in international relations circles.

VANDERBILTJOURNAL OFTRANSNATIONAL LAW

There are now over 40 Turkish embassies in Africa, and state-controlled Turkish Airlines flies to more than 50 African destinations. Last fall, Turkey opened a military base in Somalia, its first in Africa and the largest of its overseas bases. If you get sick in Somalia, you may be treated at the Recep Tayyip Erdogan Hospital. Visitors arrive at an airport terminal run by a Turkish company, and travel on roads built by Turkey's development authority. Garbage collection is handled by the Turkish Red Crescent.201

PM),

https://foreignpolicy.com/2018/08/20/the-rise-and-fall-of-soft-power/

See Eric X. Li, The Rise and Fall of Soft Power, FOREIGN POL'Y MAG. (Aug. 20, 2018, 1:25 [https://perma.cclS7QK-3B35] (archived Aug. 19, 2019). On Turkey's use of soft power, see Zafer Yoruk & Pantelis Vatikiotis, Soft Power Or Illusion of Hegemony: The Case of the Turkish Soap Opera "Colonialism," 7 INT'L J. COMm. 2361, 2361 (2013). See also Ibrahim Kalin, Soft Power and Public Diplomacy in Turkey, 16 PERCEPTIONS: J. INT'L AFF. 5, 7 (2011).

Backyard, MIDDLE

198. See infra Part H.B. 199. See Suraj Sharma, Turkey Scrambles for Africa: Ankara Eyes New Empire Old EYE 11:45 AM),

in 2017, http://www.middleeasteye.net/news/turkey-scramble-africa-1794375465 [https://perma.cclYLE2-UJUZC] (archived Aug. 19, 2019) (stating that "[wihen the AKP government began its push into Africa in 2005, it relied heavily on soft power to find leverage in Africa, particularly in eastern and southern Africa.").

E.

7,

200. Fidan, supra note 96, at 92 (observing that Turkish diplomats now "have a larger set of instruments to draw on as they launch new policies to advance the country's regional and global agenda . ..Turkey's soft power now comprises, among others things, cultural diplomacy, development assistance and mediation services.").

201. Peter Kenyon, Turkey is Quietly Building Its Presence in Africa, NAT'L PUB.

RADIO (Mar. 8, 2018, 11:27 AM), https://www.npr.org/sections/parallels/2018/03/08/ 590934127/turkey-is-quietly-building-its-presence-in-africa BQ8E] (archived Aug. 19, 2019).

[https://perma.cclL2ZN-

202. See Sharma, supra note 199 ("The primary tool it relied on for this soft

projection of power was Fethullah Gulen's educational institutions.").

203. Daragh Neville & Alex Vines, President Erdogan's Africa Agenda: From 8:59 AM),

Business https://www.newsweek.com/erdogans-agenda-turkey-africa-548136 [https://perma.cc/ 6AA8-QCAY] (archived Aug. 18, 2019).

to Embassy-Building, NEWSWEEK

2017,

(Jan.

26,

979 9

204. See Kareem Shaheem, Erdogan v the Gulenists: from political allies to PM),

Turkey's https://www.theguardian.com/world/2016/jul/19/thousands-detained-as-turkey-vows-tosmoke-out-gulen-supporters [https://perma.cc/4UXR-MKQN] (archived Aug. 19, 2019).

GUARDIAN

rivals,

bitter

2019,

(July

2:54

19,

205. Erdogan's foundation takes over 76 Gulen movement schools in 10 countries, 24/

2018), https://www.turkishminute.com/2018/04/

TURKISH MINUTE erdogans-foundation-takes-over-76-gulen-movement-schools-in-10-countries/ [https://perma.ccl56YW-XRPG] (archived Aug. 19, 2019).

(Apr.

206. The ten countries are: Guinea, Somalia, Sudan, People's Republic of the Congo, Mali, Mauritania, Niger, Tunisia, Senegal, and Chad with their 8,506 students. Id.

207. Id. 208. Pinar Dost-Niyego, Turkey's Growing Presence in Africa, and Opportunities

and Challenges To Watch https://www.atlanticcouncil.org/events/past-events/turkey-s-growing-presence-in-africaand-opportunities-and-challenges-to-watch-in(archived Aug. 19, 2019).

in 2018, ATLANTIc CouNciL

[https://perma.cc/DFS9-B4MQ]

(Mar. 26, 2018),

209. Id. 210. Natural Resources and Economic Growth Draw Turkish Airlines to Africa, CTR. FOR AVIATION (Jan. 29, 2012, 5:41 PM), https://centreforaviation.com/analysis/ reports/natural-resources-and-economic-growth-draw-turkish-airlines-to-africa[https://perma.cclVP5Z-3GWV] (archived Aug. 19, 2019).

66908

211. Id. 212. Id.

213. Turkish Students Continue Volunteer Work in Africa, DAILY SABAH (Aug. 25,

2017), volunteer-work-in-africa [https://perma.cc/TRC4-MTS8] (archived Aug. 19, 2019).

https://www.dailysabah.com/turkey/2017/08/26/turkish-students-continue-

214. Id. 215. See generally MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., [https://perma.cc/A2LB-8YE5]

(last visited Sept. 8, 2019)

http://www.mfa.gov.tr (archived Aug. 19, 2019).

216. Brief History of the Ministry of Foreign Affairs of the Republic of Turkey, MINISTRY OF FOREIGN AFFAIRS, REPUBLIC OF TURK., http://www.mfa.gov.tr/turkiyecumhuriyeti-disisleri-bakanligi-tarihcesi.en.mfa (last 2019) [https://perma.cc/W5BA-CN49] (archived Aug. 19, 2019).

217. Id.

218. Id.; see F. STEPHEN LARRABEE & IAN 0. LESSER, TURKISH FOREIGN POLICY IN AN AGE OF UNCERTAINTLY 128 (Rand Corp. 2003) (observing that although Turkey's business community tends to be secular and highly supportive of Turkish integration in European and Western institutions and is generally not a community that looks South or East, culturally or politically, it is nonetheless among the most active proponents of Turkish economic engagement in Eurasia and the Middle East); see also Yusuf K. Bagir, Impact of the Presence of Foreign Missions on Trade: Evidence from Turkey, MUNICH PERSONAL REPEC ARCHIVE (2017), https://mpra.ub.unimuenchen.de/80845/1/MPRA paper_80845.pdf [https://perma.cc/88RT-ENHS] (archived Oct. 21, 2019) ("Turkey has experienced a significant change in its foreign policy objectives since the beginning of the 21th century. The main goal of this change was to develop a multi-dimensional and more proactive foreign policy which in part led to the expansion of relations with long-time neglected Sub-Saharan Africa, Latin America and Asia-Pacific regions."

219. See Foreign Relations of Turkey, supra note 217. 220. Turkey to open 5 new embassies in African countries, supra note 142 (discussing the steady rise in the number of Turkish missions since 2002, when the ruling Justice and Development Party came to power).

221. Of Turkey's 233 missions around the world, 135 are embassies, thirteen are permanent representations, eighty-four are consulates-general and one is a trade office. See List of Diplomatic Missions of Turkey, WIKIPEDIA, https://en.wikipedia.org/wiki/

Increasing the volume of exports; Diversification of export goods and services; the exporters' share of Developing new export markets; international trade and providing necessary support for their initiatives; to exporters, overseas Gaining competitiveness and bringing assurance contractors, and investors on the international markets; and "romoting and supporting the production and sale of investment goods for export through

Increasing

overseas investments.

List of diplomatic-missionsofLTurkey (last visited Sept. 8, 2019) [https://perma.cc/ 86YV-PZFD] (archived Aug. 19, 2019).

222. Global Diplomacy Index: 2017 Country Ranking, LowY INST.

(2017),

https://globaldiplomacyindex.lowyinstitute.org/country-rank.html# [https://perma.cc/8T5J-BHY2] (archived Aug. 19, 2019). 223. Turkey-Africa Relations, supra note 4. 224. Neville & Vines, supra note 203. 225. See TURK EXIMBANK, https://www.eximbank.gov.tr/en (last visited Sept. 8,

2019) [https://perma.cc/8N4P-TKFE] (archived Aug. 19, 2019).

226. Turk Eximbank in Brief, TURK EXIMBANK, https://www.eximbank.gov.tr/en/ about-us/corporate (last visited Sept. 8, 2019) [https://perma.cc/FC6Y-GAVH] (archived Aug. 19, 2019).

227. Turk Eximbank hits road for more international cooperation, HURRIYET DAILY NEws (Feb. 18, 2018), http://www.hurriyetdailynews.com/turk-eximbank-hits[https://perma.ccfWQH5-2MBT] road-for-more-international-cooperation-127479 (archived Aug. 19, 2019).

228. Id. 229. Tanzania seeks Turkish loan for railway, AFR. NEWS (Jan. 1, 2017),

http://www.africanews.com/201 [https://perma.cclPW63-GKXE] (archived Aug. 19, 2019).

7/01/24/tanzania-seeks-turkish-loan-for-railway/

230. Framework of Cooperation 2008, supra note 177. 231. About the Foreign Economic Relations Board of Turkey (DEK), TURK--U.S. (last visited Sept. 8, 2019)

Bus. COUNCIL, http://www.taik.org.tr/about-deik.php [https://perma.cc/6C9V-HDTL] (archived Aug. 19, 2019) [hereinafter About DEIK].

232. Id. 233. Id. 234. Id. 235. Id. ("The Business Councils constitute the backbone of DEIK, while their Executive Committees are responsible for the implementation of the decisions taken."). Published in 2017, 'The Regulation on Working Procedures and Principles of Foreign Economic Relations Board and Business Councils" (the "Regulation") sets out the functions of the Business Council. The Regulation was published in Official Gazette no. 30252 on November 26, 2017, and entered into effect on the same date. There are three different types of Business Councils, namely Bilateral Business Councils, Sectoral Business Councils, and Special Purpose Business Councils. Id.

236. The Foreign Economic Relations Board (DEIK) established business councils

with forty-two African countries.

237. About DEIK, supra note 231.

238. History of the Turkish Cooperation and Coordination Agency (TIKA), MINISTRY OF CULTURE & TOURISM, REPUBLIC OF TURK., http://www.tika.gov.tr/en/page/ [https://perma.ccl5RG2-TSBU] 8, 2019) history-oftika-8526 (archived Aug. 19, 2019) [hereinafter History of TIKA].

(last visited Sept.

239. Id. 240. History of TIKA, supra note 238 ("In the '90s, our country's first priority regarding the issue of Central Asia became the recognition of the young Turkic countries by the international community. This was followed by our country carrying out projects for our cognates living in the newly founded countries of Central Asia in various fields, such as the social, economic and cultural ones.").

241. Id. 242. Id. 243. Id. 244. Id. 245. Id. 246. Id. 247. Overseas Offices, TiKA, http://www.tika.gov.tr/en/overseasofflces

visited Sept. 9, 2019) [https://perma.cc/GKN7-SNWE] (archived Aug. 19, 2019).

248. Ozkan & Akgfin, supra note 71, at 538. 249. Agriculture School Project

in Somalia Brings Results, TIKA,

http://www.tika.gov.tr/en/news/agriculture-school-projectLin-somalia-bringsresults19330 (last visited Sept. 9, 2019) [https://perma.cc/A48Z-ASBD] (archived Aug. 19, 2019).

250. Id. 251. Turkey's TiKA launches projects to support education, economy in Africa,

DAILY SABAH (May 31, 2016), https://www.dailysabah.com/life/2016/06/01/turkeys-tika[https://perma.cc/9JTAlaunches-projects-to-support-education-economy-in-africa

V. TURKEY-AFRICA BILATERAL INVESTMENT TREATIES

B2U4] (archived Aug. 19, 2019) (discussing the donation of agricultural equipment to provide sustainable agricultural development and food security in regions with important agricultural potential and fertile lands in Kenya).

252. Ozkan & Akgain, supra note 71, at 537. 253. See Kalin, supra note 197; Ozerdem, supra note 7. 254. Investment Policy Hub -Turkey, supra note 1. 255. Id. 256. Id. 257. Id. 258. Id. 259. Id. 260. Id. (Egypt, Ethiopia, Libya, Mauritius, Morocco, Senegal, and Tunisia). 261. Id. 262. Id. 263. Id. 264. Id. 265. Id.

266. Bilateral Investment Treaties, MINISTRY OF TRADE, REPUBLIC OF TURK.

5,

2018),

https://www.trade.gov.tr/legislation/bilateral-investment-treaties

(Sept. [https://perma.cclR7MT-PGUV] (archived Sept. 11, 2019) (highlighting the protections available to investors under Turkey's BITs); see also Ismail G. Esin et al., Turkey, (2015), INv. GETTING https://www.esin.av.tr/wp-content/uploads/2014/12/GTDT-Investment-TreatyArbitration-2015.pdf [https://perma.cclTR6L-SH5D] (archived Sept. 11, 2019).

THE DEAL THROUGH

TREATY ARB.

89-90

89,

267. See Bilateral Investment Treaties 1995-2006: Trends in Investment (2007), (archived

Rulemaking, https://unctad.org/en/Docs/iteiia20065_en.pdf Oct. 8, 2019) [hereinafter Bilateral Investment Treaties 1995-2006].

1 & [https://perma.cc/6TL8-SPGX]

CONFERENCE

DEV.

U.N.

268. G20 Guiding Principles for Global Investment Policymaking, Annex III to the G20 Trade Ministers Meeting Statement, ORG. FOR ECON. COOPERATION & DEV. (July 2016), 9-10, Statement-July-2016.pdf [hereinafter G20 Guiding Principles].

https://www.oecd.org/daf/inv/investment-policy/G20-Trade-Ministers-

[https://perma.cclWE5Y-MA6Z]

(archived Oct.

8, 2019)

269. Bilateral Investment Treaties, supra note 266. 270. Id. 271. Id. 272. Id.

The national treatment standard is perhaps the single most important standard of treatment enshrined in international investment agreements (IIAs). At the same time, it is perhaps the most difficult standard to achieve, as it touches upon economically (and politically) sensitive issues. In fact, no single country has so far seen itself in a position to grant national treatment without qualifications, especially when the establishment of an

it comes

investment.

273. Id. 274. Id. 275. Id. 276. U.N. CONFERENCE ON TRADE & DEV., NATIONAL TREATMENT, at IV-1, U.N.

Doc. UNCTAD/ITE/IIT/11, U.N. Sales No. E.99.II.D.16 (1999).

277. Id. 278. Id. 279. See, e.g., Turkey-Egypt BIT, supra 54, at art. 11(2); Turkey-Ethiopia BIT, supra note 55, at art. 11(2); Turkey-Rwanda BIT, supra note 66, at art 4; TurkeyNigeria BIT (2011), supra note 43, at art. 5(4).

280. Turkey-Senegal BIT, supra note 58, at art. 3(2). 281. Turkey-Libya BIT, supra note 56, at art. 3(2).

Treatment of Investments

1. Each Contracting Party shall admit in its territory investments on a basis no less favourable than that accorded in like circumstances to investments of investors of any third State, within the framework of its laws and regulations.

2. Each Contracting Party shall accord to these investments, once established, treatment no less favourable than that accorded in like circumstances to investments of its investors or to investments of investors of any third State, whichever is the most favourable, as regards the management, maintenance, use, operation, enjoyment, extension, sale, liquidation or disposal of the

investment.

282. U.N. CONFERENCE ON TRADE & DEV., MOST FAVORED NATION TREATMENT,

at 13, U.N. Doc. UNCTAD/ITE/IIT/10, U.N. Sales No. E.99.II.D.11 (2010).

283. Id. at 14. 284. See, e.g., Turkey-Egypt BIT, supra note 54, at art. II(1)-(2); TurkeyEthiopia BIT, supra note 55, at art. II(1)-(2); Turkey-Rwanda BIT, supra note 66, at art. 4; Turkey-Nigeria BIT (2011), supra note 43, at art. 5(4); Turkey-Senegal BIT, supra note 58, at art. 3(1)-2); Turkey-Kenya BIT, supra note 65.

285. Turkey-Rwanda BIT, supra note 66. 286. The Turkey-Egypt BIT and Turkey-Tunisia BIT do not guarantee investors absolute standards of treatment. See Turkey-Egypt BIT, supra note 54; TurkeyTunisia BIT, supra note 45.

287. Turkey-Cameroon BIT, supra note 61, at art. 3(2). 288. Turkey-Ethiopia BIT, supra note 55, at art. 11(2). 289. Turkey-Gabon BIT, supra note 62, at art. 3(2). 290. Turkey-Gambia BIT, supra note 63, at art. 3(2) 291. Turkey-Senegal BIT, supra note 58, at art. 2(2). 292. Turkey-Kenya BIT, supra note 65, at art. 2(2). 293. Turkey-Libya BIT, supra note 56, at art. (2)(2). 294. Turkey-Ethiopia BIT, supra note 55, Preamble ("Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources.").

295. Turkey-Morocco BIT, supra note 57. 296. Turkey-Cameroon BIT, supra note 61, at art. 3(2). 297. Turkey-Ethiopia BIT, supra note 55, at art. 11(2). 298. Turkey-Gabon BIT, supra note 62, at art. 3(2). 299. Turkey-Gambia BIT, supra note 63, at art. 3(2). 300. Turkey-Kenya BIT, supra note 65, at art. 2(2). 301. Turkey-Libya BIT, supra note 56, at art. 2(2). 302. Turkey-Morocco BIT, supra note 57. 303. Turkey-Cameroon BIT, supra note 61, at art. 3(2). 304. Turkey-Ethiopia BIT, supra note 55, at art. 11(2). 305. Turkey-Gabon BIT, supra note 62, at art. 3(2). 306. Turkey-Gambia BIT, supra note 63, at art. 3(2). 307. Turkey-Kenya BIT, supra note 65, at art. 2(3).

Promotion and Protection of Investments

2. Investments of investors of each Contracting Party shall at all times be accorded treatment in accordance with international law minimum standard of treatment, including fair and equitable treatment and full protection and security in the territory of the other Contracting Party. Neither Contracting Party shall in any way impair the management, maintenance, use, operation, enjoyment, extension, sale, liquidation or disposal of such investments by unreasonable or discriminatory measures.

308. Turkey-Libya BIT, supra note 56, at art. 2(2). 309. Turkey-Morocco BIT, supra note 57. 310. Turkey-Rwanda BIT, supra note 66. 311. U.N. CONFERENCE ON TRADE & DEV., EXPROPRIATION, at 1, U.N. Doc.

UNCTAD[DIAE/IA/2011/7, U.N. Sales No. E.12.II.D.7 (2012).

312. Id. 313. Id. (observing that "In the first part of the twentieth century, the first major revolutionary phase of mass expropriations movements in Russia and Mexico." Also noting that "A second wave of nationalizations and expropriations followed the period of decolonization that took place after the Second World War.").

(nationalizations) occurred during

[VOL.-52.'949

314. Id. 315. See generally Bilateral Investment Treaties 1995-2006, supra note 267 (stating "In general, BITs allow countries to expropriate foreign investments on a nondiscriminatory basis, for a public purpose and against the payment of compensation."); see, e.g., Turkey-Tunisia BIT, supra note 45, at art. 111(1) (stating that investments shall not be expropriated .. .except for a public purpose in a non-discriminatory manner, upon payment of prompt adequate and effective compensation, and in accordance with due process of law."). Not all BITs between Turkey and countries in Africa require that all four standards be met. The BIT between Turkey and Morocco only requires that expropriation be for public purpose and on a non-discriminatory basis. Article 4(1) states that "[m]easures of nationalization, expropriation or any other measures having an equivalent effect ...must be neither discriminatory nor taken other than for a public purpose. Turkey-Morocco BIT, supra note 57, at art. 4(1).

316. Turkey-Ethiopia BIT, supra note 55, at art. IV(1). 317. Turkey-Egypt BIT, supra note 54, at art. 111(1) (calling for "prompt, adequate and fair compensation"); see also Turkey-Morocco BIT, supra note 57, at art. 4(2) ("The contracting Party that takes such measures shall, give to the beneficiaries a fair and equitable compensation which shall amount to the market-value of the concerned investment on the day before the one the said measures were taken or became public knowledge.").

318. The following BITs have a due process requirement in the expropriation clause: Turkey-Egypt BIT, supra note 54, at art. 3(1); Turkey-Ethiopia BIT, supra note 55, at art. IV(1); Turkey-Senegal BIT, supra note 58, at art. 5(1). Some BITs do not have a due process requirement. See, e.g., Turkey-Morocco BIT, supra note 57, at art. 4(2).

EMERGING MIARKET ECONOMIES AND INVESTMENT LAW

non-discriminatory upon manner, payment of prompt, and adequate effective compensation, and in accordance with due process of law and the general principles of treatment provided for in Article 3 of this Agreement.

non- discriminatory upon manner, payment of prompt, and adequate effective compensation, and in accordance with due process of law and the general principles of treatment provided for in Article II of this Agreement.

expropriation) except for a public purpose, nonin discriminatory upon manner, payment of prompt, and adequate effective compensation, and in accordance with due process of law and the general principles of treatment provided for in Article 3 of this

Agreement.

319. Turkey-Senegal BIT, supra note 58. 320. Turkey-Libya BIT, supra note 56. 321. Turkey-Sudan BIT, supra note 44. 322. See generally Bilateral Investment Treaties 1995-2006, supra note 267. 323. U.N. CONFERENCE ON TRADE & DEV.,

INVESTMENT AGREEMENTS: KEY ISSUES, at 1-257, U.N. Doc. UNCTAD[ITE/IIT/2004/10, U.N. Sales No. E.05.II.D.6 (2004). 324. Id. at 1-258. 325. Turkey-Egypt BIT, supra note 54.

[VOL. 52."949

Each Contracting Party shall to the extent possible, ensure that its laws, regulations and administrative rulings of general application respecting any matter governed by this Agreement are promptly published or otherwise made available in such a manner as to enable interested investors of the other Contracting Party to become acquainted with them.333

326. Turkey-Morocco BIT, supra note 57 (emphasis added). 327. Turkey-Tunisia BIT, supra note 45. 328. U.N. CONFERENCE ON TRADE & DEV., TRANSPARENCY, at 3, U.N. Doc.

UNCTAD/ITE/IIT/2003/4, U.N. Sales No. E.04.II.D.7 (2004).

329.

INTERNATIONAL INVESTMENT AGREEMENTS: KEY ISSUES, supra note 323, at

282.

330. See 2012 U.S. MODEL BILATERAL

10, https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%2OMeeting.pdf (last visited Sept. 10, 2019) [https://perma.cc/XAF3-FG7J] (archived Aug. 13, 2019); see also Agreement Between the Government of Canada and the Government of Burkina Faso for the Promotion and Protection of Investments, Can.-Burk. Faso, Apr. 20, 2015, art. 12, commerciaux/agr-acc/burkina-fasofipa-apie/index.aspx?lang-eng#bl2 [https://perma.cc/TZB7-E3VN] (archived Aug. 13, 2019).

https://www.international.gc.ca/trade-commerce/trade-agreements-accords-

TREATY,

art.

331. See Model Agreement for the Promotion and Protection of Investments,

Gov'T OF CAN., art. 19, https://www.italaw.com/documents/Canadian2004-FIPA-modelen.pdf (last visited Oct. 8, 2019) [https://perma.cclSL8P-DN25] (archived Aug. 13, 2019) [hereinafter Canada's Model BIT].

332. Turkey-Rwanda BIT, supra note 66. 333. Id. at art. 13.

334. See Investment Dispute Settlement Navigator, U.N. CONFERENCE ON TRADE (last visited Sept. 10, 2019)

& DEV., http://investmentpolicyhub.unctad.org/ISDS [https://perma.cc/B94T-DLF5] (archived Aug. 13, 2019).

335. See Biwater Gauff (Tanz.) Ltd. v United Republic of Tanz., ICSID Case No.

ARB/05/22, Award, ¶ 105 (Jul. 24, 2008).

336. See Metalclad Corp. v. United Mexican States,

ICSID Case No. ARB(AF)/97/1, Award, ¶ 44 (Aug. 30, 2000); Methanex Corp. v. U.S., NAFTAUNCITRAL, Final Award of the Tribunal on Jurisdiciton and Merits, ¶ 2 (Aug. 3, 29.pdf 2005), [https://perma.cc/9FNV-FGTH] (archived Aug. 13, 2019).

https://www.italaw.com/sites/default/files/case-documents/ita05

337. See Occidental Expl. & Prod. Co. v. Republic of Ecuador, L.C.I.A. Case No. UN3467, Final Award, ¶¶ 37, 64 (July 1, 2004), https://www.italaw.com/sites/default/ (archived Sept. 11, files/case-documents/ita0571.pdf 2019).

[https://perma.cclPYE9-WEQP]

338. See Philip Morris Asia Ltd. v. Commonwealth of Austl., UNCITRAL PCA Case No. 2012-12, Award on Jurisdiction and Admissibility, 1 5 (Dec. 17, 2015), https://www.italaw.com/sites/default/files/case-documents/italaw7303_0.pdf [https://perma.cclFFU5-YFLB ] (archived Sept. 11, 2019); Philip Morris Brands Sarl, Philip Morris Prods. S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 1 10 (July 8, 2016).

339. Puma Energy Holdings S.A.R.L. v. Republic of Benin, SCC EA Case No. (June 8, 2017), https://investmentpolicy.unctad.org/investment[https://perma.cc/4JEP-ALYZ]

2017/092, Award dispute-settlement/cases/820/puma-energy-v-benin (archived Aug. 13, 2019).

340. De Sutter et al. v. Republic of Madag., ICSID Case No. ARB/17/18, Award (Aug. 29, 2014); see also Courts (Indian Ocean) Ltd. & Courts Madag. S.A.R.L. v. Republic of Madag., ICSID Case No. ARB/13/34, Request for Institution of Arbitration Proceedings (Dec. 23, 2013).

341. Grupo Francisco Hernando Contreras v. Republic of Equatorial Guinea,

ICSID Case No. ARB(AF)/12/2, Notice of Arbitration (Mar. 23, 2012).

342. Turkey-Algeria BIT, supra note 60. 343. Turkey-Cameroon BIT, supra note 61, at art. 10.

.

.

344. Turkey-Ethiopia BIT, supra note 55, at art. VII. 345. Turkey-Gambia BIT, supra note 63, at art. 10. 346. Fidan, supra note 96 (noting that economic factors "have increasingly

occupied a major role in the making of Turkish foreign policy."). 347. Bilateral Investment Treaties, supra note 266. 348. Id. 349. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 7 (noting that in recent years countries are redesigning their international investment treaties and are undertaking reform actions in the pursit of sustainable development-oriented investment treaties). 350. G20 Guiding Principles, supra note 287, ¶ V. 351. See Bilateral Investment Treaties 1995-2006, supra note 286, at xiv (stating that "[c]urrent BIT practice does not, in general, expressly deal with development matters beyond the inherent objective of BITs of investment protection."); see generally Investment Policy Hub https://investmentpolicy.unctad.org/international-investment-agreements/by-economy (last visited Oct. 21, 2019) [https://perma.cc/3M5A-RKUN] (archived Oct. 21, 2019).

ZAs by Economy, U.N. CONFERENCE ON TRADE & DEV.,

352. Sustainable development is not mentioned explicitly in most of the BITs

that Turkey has concluded with countries in Africa. See Investment Policy Hub Turkey, supra note 1.

353. The argument is that if the regulatory powers of a state are not constrained, the state can regulate in the public interest and can adopt laws and regulations to

ensure corporate responsibility and accountability. Conversely, when BITs restrict the regulatory powers of a state, the result is regulatory chill and an inability of the state to protect human rights and advance other sustainable development goals. Increasingly the right to regulate is explicitly addressed in BITs.

354. Agreement Between the Government of the Republic of Turkey and the Government of the Republic of Burundi Concerning the Reciprocal Promotion and Protection of Investments, Turk.-Burundi, June 14, 2017, https://investmentpolicy. unctad.org/international-investment-agreements/treaty-files/583 [https://perma.cc/HH6Z-FGG3] (archived Oct. 21, 2019) [hereinafter Turkey-Burundi BIT] ("Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of capital and technology and the economic development of the Contracting Parties."); see also Turkey-Gabon BIT, supra note 62, Preamble ("Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of capital and technology and the economic development of the Contracting Parties.").

8/download

355. See, e.g., Turkey-Rwanda BIT, supra note 66, Preamble ("Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights."); see also Turkey-Gabon BIT, supra note 62, Preamble ("Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights.").

356. See, e.g., Turkey-Rwanda BIT, supra note 66, at art. 2 ("This Agreement shall apply to investments in the territory of one Contracting Party, made in accordance with its national laws and regulations, by investors of the other contracting party. .."); see also Turkey-Gabon BIT, supra note 62, at art. 2 ("This Agreement shall apply to investments in the territory of one Contracting Party, made in accordance with its national laws and regulations, by investors of the other Contracting Party.").

357. See, e.g., Turkey-Gabon BIT, supra note 62, at art. 4(1) ("Each Contracting Party shall admit in its territory investments ... within the framework of its laws and regulations"). 358.

Id. at art. 5 ("General Exceptions"). Article XX of the GATT provides inter alia: "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; ... (e) relating to the products of prison labour;

(f)

imposed for the protection of national treasures of artistic, historic or

archaeological value;

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption." See also General Agreement on Tariffs and Trade, art. XX, Oct. 30, 1947, 61 Stat. A-11, T.I.AS. 1700, 55 U.N.T.S. 194 [hereinafter GATT]; see also GATT, ANALYTICAL INDEX: GUIDE TO GATT LAW & PRACTICE 519-20 (6th ed. 1994); Elissa Alben, GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link, 101 COLUM. L. REV. 1410, 1431 (2001).

359. See, e.g., Turkey-Rwanda BIT, supra note 66, at art. 6(2) (stating "Nondiscriminatory legal measures designed and applied to protect legitimate public welfare objectives, such as health, safety and environment, do not constitute indirect expropriation.").

360. Id. 361. See, e.g., Turkey-Cameroon BIT, supra note 61, Preamble ("Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights.").

362. Id. 363. See, e.g., Turkey-Egypt BIT, supra note 54, at art. 6. 364. See, e.g., Turkey-Cameroon BIT, supra note 61. 365. See, e.g., Turkey-Egypt BIT, supra note 54. 366. See, e.g., Turkey-Ethiopia BIT, supra note 55. 367. Turkey-Gabon BIT, supra note 62. 368. Turkey-Gambia BIT, supra note 63. 369. Turkey-Kenya BIT, supra note 65. 370. Turkey-Rwanda BIT, supra note 66. 371. Turkey-Nigeria BIT (2011), supra note 43. 372. Turkey-Algeria BIT, supra note 60; see also Turkey-Nigeria BIT (1996),

supra note 43.

to promote greater economic

them "DESIRING particularly with respect to investment by investors of one Contracting Party in the territory of the other Contracting Party,"

cooperation between

"CONVINCED that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labour rights."377

373. Turkey-Senegal BIT, supra note 58. 374. Turkey-Rwanda BIT, supra note 66. 375. Turkey-Kenya BIT, supra note 65. 376. Id. 377. Id.

VANDERBILT JO URNAL OF TRANSNATIONAL LAW

[VOL. 52."949

Have agreed as follows:378

Have agreed as follows:379

378. Turkey-Morocco BIT, supra note 57. 379. Turkey-Cameroon BIT, supra note 61 (emphasis added). 380. For example, in the India-BIT

(2018), Contracting Parties addressed reproactivity but also excluded several economic sectors and government measures from the scope of the agreement. Article 2 of the BIT is titled "Scope and General Provisions. In Article 2.4, the Contracting Parties agreed that the BIT shall not apply inter alia to "any measure by a local government," "any law or measure regarding taxation, including measures taken to enforce taxation obligations," and "subsidies or grants provided by a Party." See Treaty Between the Republic of Belarus and the Republic of Investment, Beir.-India, 2018, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/ 5724/download [https://perma.cc/J3LX-SR94] India-Belarus BIT].

(archived Sept. 11, 2019) [hereinafter

art. 2.4, Sept.

India on

Scope of Application

This Agreement shall apply to investments in the territory of one Contracting Party, made in accordance with its national laws and regulations, by investors of the other Contracting Party, whether prior, or after the entry into force of the present Agreement. However, this Agreement shall not apply to any disputes that have arisen before its entry into force.385

381. Turkey-Kenya BIT, supra note 65. 382. Turkey-Cameroon BIT, supra note 61. 383. Turkey-Rwanda BIT, supra note 66. 384. Turkey-Gabon BIT, supra note 62. 385. Turkey-Rwanda BIT, supra note 66. 386. Bilateral Investment Treaties 1995-2006, supra note 267, at 21. 387. Id.

388. Id. (noting that "[a]ccess limitations imposed on foreign investment have

been justified on economic, social, political or national security grounds.").

389. Id. 390. Id. 391. Id. 392. See, e.g., Turkey-Kenya BIT, supra note 65, at art 2. 393. Id. 394. Id. at art. 3. 395. Turkey-Cameroon BIT, supra note 61. 396. See generally Andrew Newcombe, General Exceptions in International Investment Agreements, in SUSTAINABLE DEVELOPMENT IN WORLD INVESTMENT LAW 351 (Marie-Claire Cordonier Segger et al. eds., Wolters Kluwer 2011); see also Kotera Akira & Mori Tadashi, General Exception Clauses in International Investment Agreements Concluded by Japan, RES. INST. EcON., TRADE & INDUSTRY 14007 (2014).

397. Levant Sabanogullari, The Merits and Limitations of General Exception Clauses in Contemporary Investment Treaty Practice, INv. TREATY NEWS (May 21, 2015), https://www.iisd.org/itn/201 5/05/21/the-merits-and-limitations-of-general-

Article 5

General Exceptions

1. Nothing in this Agreement shall be construed to prevent a Contracting Party legal from adopting, maintaining, or enforcing any non-discriminatory measures:

exception-clauses-in-contemporary-investment-treaty-practice/ AYH4] (archived Aug. 19, 2019).

[https://perma.cc/7S3X-

398. See Akira & Tadashi, supra note 410. 399. Sabanogullari, supra note 397. 400. Id. 401. Id. 402. Canada's Model BIT, supra note 345, at art. 10. 403. Turkey-Tanzania BIT, supra note 69. 404. Turkey-Cameroon BIT, supra note 61, at art. 5. 405. Turkey-Gabon BIT, supra note 62, at art. 5. 406. Turkey-Gambia BIT, supra note 63, at art. 5. 407. Turkey-Kenya BIT, supra note 65, at art. 4. 408. Turkey-Nigeria BIT (2011), supra note 43. 409. Turkey-Rwanda BIT, supra note 68, art. 5. 410. Turkey-Algeria BIT, supra note 60; Turkey-Ethiopia BIT, supra note 55.

[VOL.52:949

(a) designed and applied for the protection of human, animal or plant life or health, or the environment;

(b) related to the conservation of living or non-living exhaustible natural resources.

2. Nothing in this Agreement shall be construed:

(a) to require any Contracting Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests;

(b) to prevent any Contracting Party from taking any actions that it considers necessary for the protection of its essential security interests;

(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,

(ii) taken in time of war or other emergency in international relations, or

(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or

(c) to prevent any Contracting Party from taking action in pursuance of its obligations under the maintenance of international peace and security.411

the United Nations Charter

411. Id. 412. Turkey-Tunisia BIT, supra note 45, at art. IX.

413. See, e.g., Goetz v. Rdpublique du Burundi, ICSID Case No. ARB/95/3, Award (Feb. 10, 1999); Siag & Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award (June 1, 2009); Funnekotter v. Republic of Zim., ICSID Case No. ARB/05/6, Award (Apr. 22, 2009); Bernhard von Pezold v. Republic of Zim., ICSID Case No. ARB/10/15, Award (July 28, 2015).

414. Investment Policy Hub -Turkey, supra note 1. 415. Turkey-Rwanda BIT, supra note 68. 416. Turkey-Gabon BIT, supra note 62, at art. 6. 417. Turkey-Gambia BIT, supra note 63, at art. 6(2). 418. Turkey-Nigeria BIT (2011), supra note 43, at art. 7(2). 419. See, e.g., Turkey-Rwanda BIT, supra note 66. 420. See e.g., Turkey-Senegal BIT, supra note 58, Preamble ("Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights.").

421. See Turkey-Senegal BIT, supra note 58, Preamble ("Convinced that these objectives can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights.").

Health, Safety and Environmental Measures

The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety and environmental measures. Accordingly, a Party should not waive or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that the other Party offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.422

Turkey-Egypt BIT

Article VI

Derogation

This agreement shall not derogate from:

laws and

(a) administrative or adjudicatory decisions of either Party,

regulations, administrative practices or procedures

or

(b) international legal obligations, or,

(c) obligations assumed by either Party, including those contained in an investment agreement or an investment authorization... 423

422. Turkey-Ethiopia BIT, supra note 55. 423. Turkey-Egypt BIT, supra note 54. 424. Turkey-Algeria BIT, supra note 60. 425. Turkey-Egypt BIT, supra note 54. 426. Turkey-Rwanda BIT, supra note 66.

427. This conclusion is based on a side-by-side comparison of Article 6 of the Turkey-Egypt BIT (Derogations) and Article 5 of Turkey-Rwanda BIT buttresses this point. Investment tribunals have not interpreted either clause or determined their precise scope and effectiveness. See generally Turkey-Egypt BIT, supra note 54; Turkey-Rwanda BIT, supra note 66.

428. Turkey-Cameroon BIT, supra note 61, at art. 8 (stating that "upon fulfillment of all tax obligations, each Contracting Party shall permit in good faith all transfers related to an investment to be made freely and without delay into and out of its territory.") (emphasis added).

429. Id. 430. Similar provisions are found in Turkey's BITs with the following countries: Gambia (Art. 8(3 , Rwanda (Article 8(3 , Gabon (Article 8(3 , Tanzania (Article 8(3 , and Kenya (Article 7(3 .

431. Id. 432. Turkey-Cameroon BIT, supra note 61.

VI. TURKEY-AFRICA BIIATERAL INVESTMENT TREATIES: A CRITIQUE

433. Turkey-Gabon, supra note 62. 434. Office of the High Comm'r for Human Rights, U.N. Guiding Principles on

Business and Human Rights, at 11, U.N. Doc. HR/PUB/11/04 (2011).

435. See generally Turkey-Gabon, supra note 64; Turkey-Egypt BIT, supra note

54; Turkey-Ethiopia BIT, supra note 55.

436. PIA EBERHARDT & CECILIA OLIVET, PROFITING FROM INJUSTICE: How LAw FIRMS, ARBITRATORS AND FINANCIERS ARE FUELING AN INVESTMENT ARBITRATION BOOM 16 (Helen Burley ed., 2012).

the 2001 Framework

437. In Canada, negotiations on international investment agreements are subject to for Conducting Environmental Assessment of Trade Negotiations. The Canadian government takes the position that environmental assessments of trade negotiations are "an important decision-making tool for promoting sustainable development, can contribute to more open decision-making, and can also improve overall policy coherence at the national level by assisting decisionmakers to understand environmental implications of trade policy." Framework for Conducting Environmental Assessments of Trade Negotiations, GLOB. AFF. CAN. (Feb. 2001), framework-cadre.aspx?lang-eng 2019); see also Minister of Public Works and Government Services Canada, Strategic Environmental Assessment: The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, GOV'T OF CAN. (2010), https://www.canada.calen/ impact-assessment-agency/programs/strategic-environmental-assessment/cabinetdirective-environmental-assessment-policy-plan-program-proposals.html [https://perma.cc/W9KP-3AMG ] (archived Sept. 11, 2019).

http://www.international.gc.ca/trade-agreements-accords-commerciaux/env/ [https://perma.cc/84DG-J4YZ]

(archived Sept. 11,

438. U.N. Guiding Principles on Business and Human Rights, supra note 434, at

11.

439. Id.

440. A common formulation is that found in the preamble to the Turkey-Egypt. Turkey-Egypt BIT, supra note 54; see also Turkey-Ethiopia BIT, supra note 55, Preamble.

441. What

is Sustainable Development?,

SUSTAINABLE DEV. COMM'N, (last http://www.sd-commission.org.uk/pages/what-is-sustainable-development.html visited Sept. 10, 2019) [https://perma.cclEVK5-4DNX] (archived Aug. 19, 2019); see also Rep. of the World Comm'n on Env't & Dev., Our Common Future, 1 27, U.N. Doc. A/42/427 (Aug. 4, 1987).

442. Id. 443. G.A. Res. 70/1, supra note 39, at 1 1-2. 444. See, e.g., Turkey-Senegal BIT, supra note 58, Preamble (contracting parties expressed a conviction that the treaty objectives "can be achieved without relaxing health, safety and environmental measures of general application as well as internationally recognized labor rights.").

[VOL. 52.:949

445. Id. 446. UNCTAD'S REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 10 (noting that "[g]rowing concerns with the functioning of the IIA regime, together with the evolution of the global investment landscape and the sustainable development imperative, have in recent years triggered a move towards reforming international investment rule -making.").

447. Vienna Convention on the Law of Treaties, art. 31(2), May 23, 1969, 1155

U.N.T.S. 18232.

448. See Comprehensive Economic and Trade Agreement (CETA), Can.-EU, art. Sept.

8, https://investmentpolicy.unctad.org/international-investmentagreements/treaty-files/5380/download [https://perma.cc/7K8E-XVT5] 11, 2019) (discussing the 'investment' portion of the trade agreement).

2017,

449. See Cooperation and Facilitation Investment Agreement Between the Federative Republic of Brazil and the United Arab Emirates, Braz.-U.A.E., Preamble, Mar. 15, 2019 [hereinafter Brazil-UAE BIT].

450. DRAFT PAN-AFRIcAN INVESTMENT CODE, AFRICAN UNION COMM'N ECON. https://au.int/en/documents/20161231/pan-african-

2016),

(Dec.

AFF. DEP'T

investment-code-paic [hereinafter DRAFT PAIC]. 451. Id. at art. 22(3). 452. UNCTAD's REFORM PACKAGE FOR THE

[https://perma.cc/7EW8-G77L]

INVESTMENT REGIME, supra note 30, at 66 (acknowledging that corporate social responsibility clauses are not common in BITs but also observing that "[t]he last decade has seen the development of CSR standards as a unique dimension of 'soft law' that is rapidly evolving.").

453. DRAFT PAIC, supra note 450. 454. Id. 455. Id. at art. 22(1). 456. Id. at art. 22(2). 457. Id. at art. 22(3).

458. Id. at art. 23(1). 459. Id. at art. 23(2). 460. Id. at art. 24. 461. Id. at art. 24(a). 462. Id. at art. 24(c). 463. Id. at art. 24(e). 464. Chapter III of India's Model BIT is titled "Investor, Investment and Home the concept of corporate social responsibility

State Obligations," and addresses extensively. See 2016 Indian Model BIT, supra note 29.

465. Id. 466. Id. at arts. 9-12. 467. Id. at art. 8.1. 468. Brazil-UAE BIT, supra note 449, at art. 15 (titled "Corporate Social

Responsibility" and addressing the obligation of investors).

469. See, e.g., Agreement for

the Promotion and Reciprocal Protection of Investments, Can.-Guinea, May 27, 2014, https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/5095/download [https://perma.cc/ TP94-7CV2] (archived Sept. 11, 2019) [hereinafter Canada-Guinea BIT]. Article 16 of the Canada-Guinea BIT is titled "Corporate Social Responsibility" and states that "[e]ach Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as

23. When concluding and during the term of trade and investment agreements or other relevant conventions, member States should consider possible human rights impacts of such agreements and take appropriate steps, including through the incorporation of human rights clauses, to mitigate and address identified risks of adverse human rights impacts.476

statements of principle that have been endorsed or are supported by the Parties." Id. at art. 16.

470. See " Investment

Agreement,

Austl.-H.K.,

2019,

https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/ (archived Sept. 11, 2019) [hereinafter 5830/download [https://perma.cc/TV3F-6HK4] Australia-Hong Kong BIT]. Article 16 of the Australia -Hong Kong BIT is titled "Corporate Social Responsibility" and provides that "[t]he Parties affirm the importance of each Party encouraging enterprises operating within its Area or subject those incorporate to its jurisdiction internationally recognised standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party." Id. at art. 16.

internal policies

to voluntarily

into their

471. See, e.g., U.N. Guiding Principles on Business and Human Rights, supra

note 434.

472. Declaration of the Committee of Ministers on the UN Guiding Principles on Business and Human Rights, COUNCIL OF EuR. (Apr. 16, 2014), https://www.coe.int/en/ web/human-rights-intergovernmental-cooperation/work-completed/human-rights-andbusiness [https://perma.cc/NBQ3-GZQN] (archived Aug. 19, 2019).

473. See Recommendation of the Committee of Ministers to Member States on Human Rights and Business, Council of Eur., Mar. 2, 2016 (adopted at the 1249th meeting of the Ministers' Deputies).

474. Id. 475. Id. 476. Id.

(1997),482 Algeria

(1997),481 Morocco

477. Sabanogullari, supra note 397. 478. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 71 (observing that old-generation treaties abound and that 95 per cent of all treaties in force were concluded before the year 2010).

479. Investment Policy Hub -Turkey, supra note 1 (indicating that most BITs

that Turkey has with countries in Africa were only signed in the last ten years).

480. UNCTAD has used the term "old-generation" IIAs to refer to investment agreements concluded prior to 2010. The treaties are considered old-generation in large part because they lack most of the reform features found in an increasing number of recent treaties. See UNCTAD, Phase 2 of IlA Reform: Modernizing the Existing Stock of Old-Generation Treaties, IIA ISSUE NOTE (2017) (noting more than 2,500 IIAs in force today-ninety-five percent of all treaties in force-were concluded before 2010 and that the continued existence of these treaties "creates overlaps and fragmentation in treaty relationships and poses interaction challenges."). 481. Turkey-Egypt BIT, supra note 54. 482. Turkey-Morocco BIT, supra note 57. 483. Turkey-Algeria BIT, supra note 60. 484. Turkey-Ethiopia BIT, supra note 55. 485. Turkey-South Africa BIT, supra note 67. 486. Turkey-Libya BIT, supra note 56. 487. Turkey-Ethiopia BIT, supra note 55. 488. Id. 489. Id. at art. V ("Each Party shall allow all transfers related to an investment to be made freely and without delay into and out of its territory in accordance with its laws and regulations.").

Turkey-Gabon BIT Article 8 Renatriation and Transfer 1. Upon fulfillment of all tax each Contracting obligations, Party shall permit in good faith an all investment to be made freely and without delay into and out of its territory. Such transfers include:

transfers

related

2. Transfers shall be made in the convertible currency in which the investment has been made or in any convertible currency at the rate of exchange in force at the date of transfer, unless otherwise agreed by the investor and the hosting Contracting Party.

I

exceptional Where, circumstances, payments and cause or capital movements threaten to cause serious balance of payments difficulties, each may Contracting transfers, temporarily restrict provided that such restrictions nonare discriminatory and in good faith basis.

imposed

Party

490. Compare Turkey-Gabon BIT, supra note 62, at art. 8, with Turkey-Egypt

BIT, supra note 54, at art. 4 (emphasis added).

491. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 72 (noting most old-generation treaties contain broadly worded defitions and substantive provisions, and safeguards).

492. Turkey-Ethiopia BIT, supra note 55. 493. Turkey-Gabon BIT, supra note 62 (emphasis added). 494. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 72 (noting international investment agreements are not harmless political declarations and have serious legal consequences).

495.

Id. at 73 (stating that at the end of 2016, virtually all of the known treaty

based investment arbitration were filed pursuant to treaties concluded before 2010).

496. Mitchell v. Democratic Republic of the Congo, ICSID Case No. ARB/99/7,

Award (Feb. 9, 2004).

497. Wena Hotels Ltd. (U.K) v. Arab Republic of Egypt, ICSID Case No

ARB/98/4, Award (Dec. 8, 2000).

498. Middle East Cement Shipping & Handling Co. v. Arab Republic of Egypt,

ICSID Case No. ARB/99/6, Award (Apr. 12, 2002).

499. UNCTAD's REFORM PACKAGE FOR THE

INVESTMENT REGIME, supra note 30, at 16 (observing that "[b]road and vague formulation of IIA provisions has allowed investors to challenge core domestic policy decisions, for instance in the area of environmental, energy and health policies.").

500. Id. 501. See generally Turkey-Ethiopia BIT, supra note 55; Turkey-Gabon BIT,

supra note 62.

treatment, full equitable the protection and security in territory of the other Contracting Party.502

[i]n determining whether the fair and equitable treatment obligation . ..has been breached, a Tribunal may take into account, where applicable, whether a Party made specific or unambiguous representations to an investor so as to induce the investment, that created legitimate expectations of a covered

502. Id. 503. Turkey-Ethiopia BIT, supra note 55. 504. See, e.g., Agreement for the Promotion and Protection of Investment, JapanU.A.E., arts. 5(1H2), Apr. 30, 2018, https://www.mofa.go.jp/files/000360123.pdf [https://perma.cclQG4D-BKTTJ [hereinafter Japan-UAE BIT]; SADC MODEL BILATERAL INVESTMENT TREATY TEMPLATE, SOUTHERN AFRICAN DEVELOPMENT COMMUNITY art. 5 (2012).

(archived Sept. 11, 2019)

505. See, e.g., Agreement for the Promotion and Protection of Investment, Arg.Japan, art. 4(2)(a), Dec. 1, 2018 ('[Flair and equitable treatment' includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world.").

506. See, e.g., Free Trade Agreement Between the European Union and the Republic of Singapore, EU-Sing., art. 2.4(2), Oct. 12, 2018 [hereinafter EU-Singapore IPA]; SADC MODEL BILATERAL INVESTMENT TREATY TEMPLATE, supra note 504, at art. 5.

507. See, e.g., EU-Singapore IPA, supra note 506, at art. 2.4(4). 508. Id. at art. 2.4(3).

investor and which were reasonably relied upon by the covered investor, but that the Party subsequently frustrated.

Treatment

1. Each Party shall treat investors of the other Party and their investments according to its applicable rules and regulations and in conformity with this Agreement.

2. Based on the applicable rules of international law as recognized by each of the Parties and their respective national law, no Party shall subject investors of the other Party and their investments to measures which constitute:

(i) Denial of access to justice in any judicial or administrative proceedings;

(ii) Breach of due process;

(iii) Targeted discrimination, such as gender, race, religious or political beliefs;

(iv) Manifestly abusive treatment, such as coercion, duress and harassment; or

(v) Discrimination against investments of investors of the other Party in law 1 enforcement and the provision of public security.510

509. The FET standard is omitted from the Rwanda-Morocco BIT (2016) and from the India-Belarus BIT (2018). The FET standard is also absent from the draft EAC Model Investment Treaty.

510. Brazil-UAE BIT, supra note 449, at art. 4.

511. Turkey-Rwanda BIT, supra note 66 (emphasis added). 512. Agreement Between the Government of the Republic of Kazakhstan and the Government of the Republic of Singapore on the Promotion and Mutual Protecion of Investments, Kaz.-Sing., art. 3, Nov. 21, 2018 [hereinafter Kazakhstan-Singapore BIT].

513. Turkey-Rwanda BIT, supra note 66 (emphasis added). 514. Kazakhstan-Singapore BIT, supra note 512, at art. 3 (emphasis added).

[VOL. 52-'949

Turkey-Rwanda BIT

Article 8

Repatriation and Transfer

4. A Contracting Party may prevent a transfer through the equitable, nondiscriminatory, and good faith application of its laws relating to:

(a) bankruptcy, insolvency, or the protection of the rights of creditors;

(b) issuing, trading, or dealing in securities, futures, options, or derivatives;

(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;

(d) criminal or penal offences;

(e) ensuring compliance with orders or judgments ill judicial or administrative proceedings; or (f) social security, public retirement or compulsory savings schemes.

515. Rwanda-Turkey BIT, supra note 66, at art. 8. 516. Turkey-Kenya BIT, supra note 65, at art. 7. 517. Compare id. at art. 8, with Rwanda-Turkey BIT, supra note 66, at art. 8. 518. See Turkey-Kenya BIT, supra note 65, at art. 7(3). Identical language can be found in the Rwanda-Turkey BIT. Rwanda-Turkey BIT, supra note 66, at art. 8 (3).

519. Rwanda-Turkey BIT, supra note 66, at art. 8(4).

As already noted, in BITs, broad treaty scope could chill regulatory action by host states, trigger investment arbitration even for routine non-discriminatory regulatory measures, and make it difficult for a host state to effectively enforce its criminal, fiscal and securities laws and policies.520

520. Id. 521. Turkey-Gabon BIT, supra note 62, at art. 9 (Article 9, titled "Transfer of Technology and Formation," provides that "subject to its laws and regulations, each Contracting Party may encourage their investors who invest in the territory of the other Contracting Party to organize professional training programs, and facilitate transfer of technology and know-how for the benefit of the host Contracting Party.").

522. See, e.g., Agreement Between the Argentine Republic and Japan for the Promotion and Protection of Investment, Arg.-Japan, art. 20, Jan. 12, 2018, https://investmentpolicy.unctad.org/international-investment-agreements/treaty2019) 11, files/5799/download [hereinafter Argentina-Japan BIT]; Japan-UAE BIT, supra note 504, at art. 20; Australia-Hong Kong BIT, supra note 470, at art. 21 (Prudential Exception and Related Exception).

[https://perma.cc/AWT7-WJHP]

523. Investment Agreement for the COMESA Common Investment Area, art. 25,

23,

2007, May agreements/treaty-files/3092/download 11, 2019).

https://investmentpolicy.unctad.org/international-investment-

[https://perma.cc/47F5-JXVT]

524. See, e.g., Argentina-Japan BIT, supra note 522, at art. 23 (Denial of Benefits); see also, Kazakhstan-Singapore BIT, supra note 512, at art. 18 (Denial of Benefits).

525. See, e.g., Japan-UAE BIT, supra note 504, at art. 19 (Temporary Safeguard

Measures).

526. See, e.g., id. at art. 21 (Intellectual Property Rights). 527. See, e.g., Argentina-Japan BIT, supra note 522, at art. 9 (Measures Against

Corruption).

528. DRAFT PAIC, supra note 463, at arts. 28, 29, 30, 36, 40. 529. Agreement on Reciprocal Promotion and Protection of Investments (Netherlands Draft Model BIT), Gov'T OF THE NETH., https://globalarbitrationreview .com/digital assets/820bcdd9-08b5-4bb5-a81e-d69e6c6735ce/Draft-Model-BIT-NL-2018 .pdf (last visited Sept. 8, 2019) [https://perma.cc/G72P-UZFY] (archived Sept. 11, 2019) [hereinafter Netherlands Model BIT].

530. UNCTAD's REFORM PACKAGE FOR THE

REGIME, supra note 30, at 22.

531. Reciprocal Investment Promotion and Protection Agreement Between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria, Morocco-Nigeria, art. 23(3), Dec. 3, 2016, https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/5409/download [https://perma.cclFT3E-8YDV] BIT].

(archived Oct. 9, 2019) [hereinafter Morocco-Nigeria

532. Id. 533. The right to regulate is mentioned in a number of EAC BITs including: Tanzania-China BIT; Rwanda-UAE BIT; Kenya-Japan BIT. See, e.g., Agreement Between the Government of the People's Republic of China and the Government of the United Republic of Tanzania Concerning the Promotion and Reciprocal Protection of Investments, China-Tanz., Mar. 24, 2013; Agreement Between the Republic of Rwanda and the United Arab Emirates Concerning the Promotion and Reciprocal Protection of Investments, Rwanda-U.A.E., Jan. 11, 2017; Agreement Between the Government of

Japan and the Government of the Republic of Kenya for the Promotion and Protection of Investment, Japan-Kenya, Aug. 28, 2016. 534. DRAFr PAIC, supra note 450. 535. Agreement Establishing

the African Continental Free Trade Area, https://au.int/sites/default/files/treaties/36437-treaty(archived Oct. 9,

[https://perma.cc/8QSV-99B3]

Preamble, Mar. consolidated text on_ cfta_-_en.pdf 2019).

2018,

536. Australia-Hong Kong BIT, supra note 470. 537. Agreement Between Australia and the Oriental Republic of Uruguay on the Promotion and Protection of Investments, Austl.-Uru., Preamble, Apr. 5, 2019, https://investmentpolicy.unctad.org/international-investment-agreements/treaty11, files/5853/download [hereinafter Australia-Uruguay BIT].

[https://perma.cc/L3CG-57T3]

538.

India-Belarus BIT, supra note 380, Preamble.

[VOL.52:949

539. SADC MODEL BILATERAL INVESTMENT TREATY TEMPLATE, supra note 504. 540. EU-Singapore IPA, supra note 506, Preamble. 541. Id. at art. 2.2(1). 542. WORLD

INVESTMENT REPORT 2012: TOWARDS A NEW GENERATION OF

INVESTMENT POLICIES, supra note 31, at xxiii.

543. WORLD INVESTMENT REPORT 2014: INVESTING IN SDGS: AN ACTION PLAN,

supra note 22, at 116.

Ilge & Singh, supra note 29.

544. 545. Arif Havas Oegroseno,

Indonesia's Bilateral Investment Treaties: Modernising for the 21st Century, 140 RSIS COMMENTARY 1 (Nanyang Tech. Univ. 2014) [hereinafter Oegroseno, Indonesia's Bilateral Investment Treaties].

546. Mzukisi Qobo & Mills Soko, SA's Cancellation of Bilateral Investment Treaties-Strategic or Hostile?, FIN24 (Sept. 28, 2018), https://www.fin24.com/Opinion/ sas-cancellation-of-bilateral-investment-treaties-strategic-or-hostile(archived Sept. 11, 2019); Jackwell Feris, Challenging [https://perma.cc/BLB4-535S] the Status Quo -South Africa's Termination of its Bilateral Trade Agreements, DLA 2014/12 PIPER (Dec. 10, 2014), https://www.dlapiper.com/en/us/insights/publications/ /international-arbitration-newsletter-q4-2014/challenging-the-status-quo/ [https://perma.cc/K3TG-BUSV] (archived Sept. 11, 2019).

20180928-3

547. Vienna Convention on the Law of Treaties, supra note 447, at art. 54. 548. Turkey-Kenya BIT, supra note 65, at art. 13 (stating "this Agreement shall remain in force for a period of ten (10) years and shall continue in force unless terminated in accordance with paragraph 3 of this Article.").

549. Id. (emphasis added). 550. See, e.g., Turkey-Nigeria BIT (2011), supra note 43, at art. 8; TurkeyCameroon BIT, supra note 63, at art. 12; Turkey-Ethiopia BIT, supra note 55, at art. 9.

551. Turkey-Kenya BIT, supra note 65 (emphasis added).

they provide for , consultation upon

Investment Policy Hub -Turkey, supra note 1.

552. 553. Id. 554. Id. 555. Id. 556. Turkey-Kenya BIT, supra note 65, at art. 11.

L _________________________

557. Id.

India-Belarus BIT, supra note 380, at art. 36.3. Id. at art. 36.2.

558. 559. 560. Vienna Convention on the Law of Treaties, supra note 447, at art. 39. 561. Turkey-Gambia, supra note 63, at art. 13(3). 562. Turkey-Cameroon BIT, supra note 61, at art. 12(3). 563. Turkey-Kenya BIT, supra note 65, at art. 13(4). 564. Id. 565. Kathryn Gordon & Joachim Pohl, Investment Treaties Over Time -Treaty Practice and Interpretation in a Changing World, 2 OECD WORKING PAPERS ON INT'L INV. 4, 36 (2015), http://www.oecd.org/industry/inv/investment-policy/WP-2015-02.pdf [https://perma.cc/N79P-GEY6] treaty replacements have not been a major channel used by countries seeking to change the way their treaties are interpreted and that this may reflect the high political and economic costs of treaty renegotiation and possibly the difficulty in getting both treaty partners to agree to a replacement).

(archived Oct.

(observing

that

9,

VII. REFORMING TURKEY-AFRICA BITS: COMPLICATING POLICY FACTORS PRACTICAL CONSIDERATIONS

566. Id. 567. Id. 568. Investment Policy Hub -Turkey, supra note 1. 569. Id. 570. See generally UNCTAD's REFORM PACKAGE FOR THE INTERNATIONAL

INVESTMENT REGIME, supra note 30.

571. Id. at 14. 572. Id. at 7 (observing that as more than half a century has passed since the first BIT was concluded, it is no surprise that BITs have gone through a significant evolutionary process during this period and that today they face a new context and new challenges).

573.

Id. at 4.

At this point, I would like to point out that we are ready to stand by and execute a more efficient and a deeper cooperation especially in priority areas of African Union and its member countries such as agriculture, energy, health, education, small and medium-sized enterprises, employment, promotion of investment, energy and transport. As highlighted in the theme of the Summit, we will walk together and resolutely, towards a new partnership model on the path to development and integration.583

The continent has the aspiration to take strides across all Sustainable Development Goals. Africa's aspirations include not only eliminating absolute poverty, but also reducing inequality, offering a wealth of valuable education opportunities to all and reinforcing good governance as the norm ...We have every reason to be proud a partner of the African nations. Turkey's engagement is based on building lasting relationships. Our principal purpose is to establish deep-rooted cooperation with our African counterparts in a manner that is sustainable and mutually productive.587

582. Recep Tayyip Erdogan, President of the Republic of Turk., Speech at the Turkey-Africa Partnership Summit (Nov. 21, 2014) (transcript available at Turkey's Ministry of Foreign Affairs website).

583. Id. 584. Mev1it Qavugoflu, How Thrkey and Afica ar Bildng a Solid Partnership, CITIZEN

(May 25, 2018), http://www.thecitizen.co.tz/oped/-How-Turkey-and-Africa-are-Building-a[https://perma.cclNC57-XJC7] Solid-Partnership/1840568-4579932-101vywp/index.html (archived Aug. 18, 2019) (published on the occasion of Africa Day).

585. Id. 586. Id. 587. Id.

588. See

States, https://www.coe.int/enl/web/portal/47-members-states [https://perma.cc/W7WH-3RHH] thirteenth member of the Council of Europe on Apr. 13, 1950).

Member

COUNCIL

EUR., (last visited Sept. 11, 2019) the

(Turkey became

11, 2019)

589. See Council of Europe Contribution to the United Nations 2030 Agenda for Sustainable Development Goals, COUNCIL OF EUR., https://www.coe.intlen/web/unagenda-2030/home (last visited Sept. 11, 2019) [https://perma.cclAA62-7GVT] (archived Sept. 11, 2019) (observing that "With its global and overarching political approach, UN Agenda 2030 for Sustainable Development has been highly relevant for the Council of Europe, which has, from the outset, been contributing to the process which led to the adoption of Agenda 2030.").

590. Letter from Thorbjorn Jaglad, Sec'y-Gen. of the Council of Eur., to Ban KiMoon, U.N. Sec'y-Gen., on the Council of Europe's contribution to the 2030 Agenda for Sustainable Development (May 29, 2015); see also SEC'Y-GEN. OF THE COUNCIL OF EUR., STATE OF DEMOCRACY, HUMAN RIGHTS AND THE RULE OF LAW: POPULISM -How STRONG ARE EUROPE'S CHECKS AND BALANCES? (Council of Eur. 2017).

591. See COUNCIL OF EUR., ENDING ALL FORMS OF VIOLENCE AGAINST CHILDREN BY 2030: THE COUNCIL OF EUROPE'S CONTRIBUTION TO THE 2030 AGENDA AND THE SUSTAINABLE DEVELOPMENT GOALS (2017); Letter from Thorbjorn Jaglad, Sec'y-Gen. of the Council of Eur., to Ant6nio Guterres, U.N. Sec'y-Gen., on the Council of Europe's Contribution to the U.N. 2030 Agenda for Sustainable Development (May 17, 2017) (on file with author); Letter from Amina J. Mohammed, Deputy Sec'y-Gen. of the U.N., to Thorbjorn Jaglad, Sec'y-Gen. of the Council of Eur., on the Council of Europe's contribution to the 2030 Agenda for Sustainable Development (May 8, 2019).

592. Comm. of Ministers, Declaration of the Committee of Ministers on the UN Guiding Principles on Business and Human Rights, COUNCIL OF EUR. (Apr. 16, 2014), https://www.coe.intlen/web/human-rights-intergovernmental-cooperation/workcompleted/human-rights-and-business 11, 2019).

[https://perma.cclSH97-SPCY]

593. Comm. of Ministers, Recommendation CM/Rec(2016)3 of the Committee of Ministers to Member States on Human Rights and Business, COUNCIL OF EUR. (Mar. 2, 2016), https://search.coe.int/cm/Pages/result -details.aspx?ObjectD=09000016805clad4 [https://perma.cc/HJ53-J366] (archived Sept. 11, 2019).

594. Id. 595. See, e.g., Bilateral Investment Treaties, OFFICE OF THE U.S. TRADE (last REPRESENTATIVE, https://ustr.gov/trade-agreements/bilateral-investment-treaties (archived Sept. 11, 2019) visited Sept. 11, 2019) (explaining that "The U.S. bilateral investment treaty (BIT) program helps to protect private investment, to develop market-oriented policies in partner countries, and to promote U.S. exports.").

[https://perma.cc/9644-F5LP]

596. Author's assessment is based on recent BIT practice of countries like

Turkey, United Arab Emirates, and Brazil.

597. Turkey has negotiated a lot of BITs in recent years. In 2018 alone, Turkey negotiated eight BITs with diverse partners including: Serbia (Jan. 31, 2018), Belarus (Feb. 14, 2018), Mali (Mar. 2, 2018), Mauritania (Feb. 28, 2018), Cambodia (Oct. 21, 2018), Krygyzstan (Apr. 9, 2018), Lithuania (Aug. 28, 2018), and Zambia (July 28, 2018). Turkey also concluded a BIT with Palestine, on Sept. 5, 2018). See Investment Policy Hub -Turkey, supra note 1; see also Jan Philipp Wilhelm, Turkey's Erdogan in Africa, Seeks More https://www.dw.com/en/turkeys-erdogan-seeks-more-influence-in-africa/a[https://perma.cc/779A-J3W3] (archived Aug. 18, 2019).

DEUSTCHE WELL

42788010

Influence

(Mar.

2018),

2,

598. Wilhelm, supra note 597. 599. 600. See Bilateral Investment Treaties, supra note 266 ("[T]he main purposes of Turkey's BIT program are to increase the bilateral flows of capital and technology, and provide protection to the investments of international investors in Turkey well as the framework of Turkish investors abroad against non-commercial international law.").

risks

VANDERBILT JO URNAL OF TRANSNATIONAL LAW

Turkey's relatively slow progress, however, has been criticized by African leaders. At the second Turkey-Africa Partnership Summit in Equatorial Guinea in 2014, Nkosazana Diamini-Zuma, chair of the African Union Commission, noted: 'Many of the outcomes of the first Africa-Turkey summit are yet to be realized." This inertia has had real-world implications: while Turkey received the support of all but two African countries in its bid for a non-permanent seat on the U.N. Security Council in 2009-10, such support was not forthcoming in a subsequent and ultimately unsuccessful bid in 2015-2016.606

601. See Neville & Vines, supra note 203 ("It remains to be seen whether

Erdokan's current excursion to Africa will deliver the desired outcome for all actors.").

602. Some scholars have pointed out a major gap between Turkey's mounting aid expenditures and its long-term capacity. In a 2014 report, the Graduate Institute of Geneva observed that "As with most other emerging economies, Turkey's economic growth is not yet sustained and is vulnerable to global economic developments," and concluded that "Given the current level of development within Turkey, it is safe to assume that an economic decline would immediately affect the scope of Turkish humanitarian donorship." See Andrea Binder, The Shape and Sustainability of Turkey's Booming Humanitarian Assistance, 5 INT'L DEV. POL'Y 1, 1 35 (2014).

603. Neville & Vines, supra note 203. 604. Id. 605. Id. 606. Id. 607. See generally McKinsey & Co., The Tough Competitors in Emerging Market,

MCKINSEY Q. (Mar. 2019), https://www.mckinsey.com/business-functions/strategy-and-

[VOL. 52.'949

613. Ozkan & Akgiin, supra note 71, at 538. 614. First Summit of Asian, Pacific Muslims to Focus on Cooperation, DATLY SABAH (Oct. 13, 2015), https://www.dailysabah.com/turkey/2015/10/14/first-summit-ofasian-pacific-muslims-to-focus-on-cooperation (archived Aug. 18, 2019).

[https://perma.cc/96BV-24Z2]

615. Turkey has also hosted Muslim leaders from Latin America. See Turkey's Top Religious Body to Host Latin American Muslim Leaders, HURRIYET DAILY NEWS (Sept. 15, 2004), http://www.hurriyetdailynews.com/turkeys-top-religious-body-to-hostlatin-american-muslim-leaders-.aspx?pagelD=238&nlD=71736&NewsCatlD=393 [https://perma.ccl5W96-U6R8] (archived Aug. 18, 2019).

616. See, e.g., Thomas Seibert, Turkey's Mosque-Building Diplomacy, AL-

MONITOR (Feb. 13, 2015), http://www.al-monitor.com/pulse/originals/2015/02/turkeymosque-building-soft-power.html (archived Aug. 18, 2019); see also STEPHEN KINZER, CRESCENT AND STAR: TURKEY BETWEEN TWO WORLDS (Farrar, Straus and Giroux 2008).

[https://perma.cc/5N2Y-XQJG]

617. See Behlil Ozkan, Turkey, Davutoglu and the Idea of Pan-Islamism, 56 SURVIVAL 119 (2014); Behlill Ozkan, Repairing the Legacy of the AKP's Pan-Islamism, EuR. COUNCIL ON FOREIGN RELATIONS (July 16, 2015), https://www.ecfr.eularticle/ reparing-thelegacy of the-akps-pan-islamism3068 [https://perma.cc/C8UK-QXJJ] (archived Oct. 9, 2019).

618. Turkey's Erdogan Sowing the Seeds of Jihadist Ideology Among African

Students, TURKISH MINUTE (Mar. 1, 2018), https://www.turkishminute.com/2018/03/01/ opinion-turkeys-erdogan-sowing-the-seeds-of-jihadist-ideology-among-african-students/ [https://perma.cclTZ2F-TU94] (archived Aug. 18, 2019).

619. Michael Rubin, Turkey's Africa Strategy Threatens to Breed Islamist Extremism, NAT'L REV. (June 26, 2019, 6:30 AM), https://www.nationalreview.com/ 2019/06/turkey-africa-strategy-threatens-to-breed-islamist-extremism/ [https://perma.cc/4RL5-AZCX] (archived Oct. 9, 2019).

620. Id.

A half century ago, Saudi Arabia pumped money to extremist organizations for the sake of diplomatic nicety and strategic across the globe while, convenience, the United States stayed silent. Today, Turkey is doing the very same thing, trying to radicalize a generation of Africans through a combination indoctrination, and military of aid, anti-Western propaganda, training. That the United States and Europe turn a blind eye toward Turkey's African agenda effectively cedes to Erdogan the strategic advantage on the second-largest continent in terms of both population and land area.621

religious

621. Id. 622. Erdogan trying to build new "Ottoman caliphate" -Saudi Crown Prince,

AHVAL (Mar. 7, 2018), https://ahvalnews.com/saudi-turkey/erdogan-trying-build-newottoman-caliphate-saudi-crown-prince 2019).

[https://perma.cc/WJ84-Q7E2] (archived Oct. 9,

623. Neville & Vines, supra note 203. 624. Ventura, supra note 119 (discussing Turkey's increasing involvement in

development assistance and criticisms of this new role).

625. G20 2015 Turkey, the Group Development Agenda, and Sub-Saharan Africa Representation1, HEINRICH BOLL STIFTUNG (June 23, 2017), https://tr.boell.org/de/2017/ 06/23/g20-2015-turkey-group-development-agenda-and-sub-saharan-africarepresentation1 [https://perma.cc/G3MH-D5SD] (archived Aug. 18, 2019).

626.

Id. ("Turkey's role in the G20 was more one of continuing pre-existing processes than adopting direct, active representation of low income, least developed, and SSA countries.").

627. Id.

628. Id. 629. Id. 630. See, e.g., Press Release, European Comm'n, Improving ISDS to Prevent Abuse- Statement by EU Trade Commissioner Karel De Gucht on the Launch of a Public Consultation on Investment Protection in TTIP (Mar. 27, 2014).

631. In 2015, law professors wrote several open letters to members of Congress urging them to omit ISDS from the Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership ("TTIP"). See, e.g., Open letter by the Alliance for Justice, to Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, Minority Leader Pelosi, and Ambassador Froman (Mar. 2015) (on file with author) (expressing opposition to the inclusion of Investor-State Dispute Settlement (ISDS) provisions in the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP .

632. An Open Letter From Lawyers to the Negotiation of the Trans-Pacific Partnership Urging the Rejection of Investor-State Dispute Settlement, TPP LEGAL (May 8, (archived Aug. 18, 2019).

2012), http://tpplegal.wordpress.com/open-letter/

[https://perma.cc/892P-7BMH]

633. See generally FABIAN FLUES, THE MULTILATERAL

INVESTMENT COURT LOCKING IN ISDS: TEN REASONS WHY THE EU's PROPOSAL FOR A MULTILATERAL INVESTMENT COURT DOESN'T FIX A FUNDAMENTALLY (2017); EBERHARDT & OLIVET, supra note 436.

FLAWED SYSTEM

634. Australia-Uruguay BIT, supra note 536. 635. In a March 7, 2019 letter to the UNCITRAL Working Group, seven independent human rights experts appointed and mandated by the United Nations Human Rights Council to report and advise on human rights issues from a thematic or country-specific perspective, stressed their continuing conting concern regarding the content and effect of international investment agreements. The letter noted stressed that international investment agreements "have often proved to be incompatible with international human rights law and the rule of law." The letter was authored by: (i) the Working Group on the issue of human rights and transnational corporations and other business enterprises; (ii) the Special Rapporteur on the right to development; (iii) the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment; (iv) the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights; (v) the Special Rapporteur on the rights of indigenous peoples; (vi) the Independent Expert on the promotion of a democratic and equitable international order; and (vii) the Special Rapporteur on the human rights to safe drinking water and sanitation. See Lettter from Independent Human Rights Experts Appointed and

responsibility.648

ARTICLE 20

SECURITY EXCEPTIONS

Nothing in this Agreement shall be construed to:

(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or

(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

ARTICLE 9

RESTRICTIONS TO SAFEGUARD THE BALANCE OF PAYMENTS

In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on payments or transfers related to investments. It is recognised that particular pressures on the balance of payments of the State of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the

646. See, e.g., id. at art. 4. 647. See, e.g., Kazakhstan-Singapore BIT, supra note 512, at art. 3. 648. See, e.g., Brazil-UAE BIT, supra note 449, at art. 15; Australia-Hong Kong

BIT, supra note 470, at art. 16.

649. See, e.g., India-Belarus BIT, supra note 380, at art. 33. 650. Agreement Between the Government of the Republic of Kazakhstan and the Government of the Republic of Singapore on the Promotion and Mutual Protection of Investments, Kaz.-Sing., Nov. https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-files/5700/download [https://perma.cc/ U6WX-7FFK] (archived Oct. 21, 2019) [hereinafter Singapore-Kazakhstan BIT].

2018,

maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.651

NATIONAL TREATMENT

1. Each Party shall accord to investors of the State of the other Party and their investments treatment no less favorable than a treatment which it accords to investors of its State and their investments concerning the management, maintenance, use, enjoyment or any other form of disposition of investments unless otherwise provided in its national legislation, governmental policies and guidelines.

2. Each Party in accordance with its national legislation, governmental policies and guidelines reserves the right to identify the sensitive sectors of economy and/ or other related activities that would be limited or excluded from the scope of this obligation.653

651. Id. 652. See, e.g., Agreement Between

the Government of

the Republic of Kazakhstan and the Government of the United Arab Emirates on Promotion and Reciprocal Protection of Investments, art. 4(2), Kaz.-U.A.E., Mar. 24, 2018, https://investmentpolicy.unctad.org/international-investment-agreements/treaty2019) 11, files/5733/download [hereinafter Kazakhstan-UAE BIT] ("The Contracting Party in accordance with its national legislation shall reserve the right to identify the sensitive sectors of economy and/ or other related activities that shall be limited or excluded.").

[https://perma.cc/5G43-WUUC]

653. Id. at art. 4.

Treatment of investments

659. Rwanda-Turkey BIT, supra note 66, at art. 3.2. 660. India-Belarus BIT, supra note 380, at art. 3.2.

[VOL- 52: 949

661. Investment Cooperation

the Federative Republic of Brazil and the Republic of Malawi, Braz.-Malawi, art. 9, June 26, treaty-files/4715/download [https://perma.cclUQE8-QYNZ] (archived Oct. 9, 2019).

https://investmentpolicy.unctad.org/international-investment-agreements/

and Facilitation Agreement Between

2015,

662. Id. at art. 9(1). 663. Id. at art. 9(2)(b). 664. Id. at art. 9(2)(c). 665. Id. at art. 9(2)(d). 666. Id. at art. 9(2)(f). 667. See Investment Policy Hub -Turkey, supra note 1 (indicating that Turkey's

first BIT was concluded in 1962, with Germany).

668. Id. 669. Id. 670. Id. ("Turkey also follows a dynamic program to conclude new BITs and

modify the old ones in line with the new developments in global investment law.").

671. According to a 2011 PowerPoint presentation of the Ministry of Economy, Republic of Turkey, 'Turkey has its own BIT Model text, and updates it regularly to

through meet international standards as well as reflect international arbitration cases involving Turkey." Hasan Aslan Akpinar, Bilateral Treaties, MINISTRY OF ECON., REPUBLIC OF TURK. (Oct. 13, 2011).

its experience gained

672. See Kalm, supra note 197, at 7 (offering a definition of soft power and

explaining why it could explain Turkey's "success" in Africa).

673. Id. 674. Id. 675. Orhan Coskun & Abdirahman Hussein, Turkey Opens Military Base in 2017,

Mogadishu https://www.reuters.com/articlelus-somalia-turkey-military/turkey-opens-militarybase-in-mogadishu-to-train-somali-soldiers-idUSKCNIC50JH 4JLA] (archived Aug. 18, 2019).

[https://perma.cclV3R5-

Soldiers, REUTERS,

Somali

Train

676. Andac Hongur & Izzet Taskiran, Turkey Seeks to Boost Diplomatic Ties with Africa, ANDALOU AGENCY (Jan. 22, 2017), https://www.aa.com.tr/en/turkey/turkey[https://perma.cc/A35B-GNM5] seeks-to-boost-diplomatic-ties-with-africa/7 (archived Aug. 18, 2019).

32499

30,

677. Id. 678. Author's expert conclusion is based on her study over the years of more than one hundred and fifty BITs involving African states. Wide disparities in the BITs of any single country suggests that countries are willing to sign any BIT that a negotiating partner presents.

679. Author's expert conclusion is based on a survey of all BITs between Turkey and countries in Africa. The similarity in the text of Turkey's BITs with countries in Africa suggests that Turkey negotiates on the basis of a Model BIT and is the 'rule giver' in the unfolding relationship.

680. Author's conclusion

is based on a study of the relationship between President Erdokan's visits to Africa and the dates that the different BITs that Turkey has with countries in Africa were concluded.

681. Id. 682. President Erdogan to Embark on Four-Country Africa Tour, HURRIYET

DAILY NEWS (Feb. 24, 2018), http://www.hurriyetdailynews.com/president-erdogan-toembark-on-4-country-africa-tour-127846 18, 2019).

[https://perma.cc/94PF-P5CC]

683. Id. (Algeria, Mauritania, Senegal, and Mali). 684. Id. (Sudan, Chad and Tunisia, Tanzania, Mozambique, and Madagascar). 685. Id. (Ivory Coast, Ghana, Nigeria, and Guinea in Feb.-Mar. 2016; Kenya,

Uganda and Somalia).

686. Id. (Somalia, Ethiopia, and Djibouti). 687. Erdogan Becomes First Turkish Leader to Visit 23 African Countries, YENI (Jan. 28, 2017), https://www.yenisafak.comlen/newslerdogan-becomes-first[https://perma.cc/B8MV-ZUSN]

SAFAK turkish-leader-to-visit-23-african-countries-2604064 (archived Aug. 18, 2019).

688. Author's conclusion

is based on a study of the relationship between President Erdogan's visits to Africa and the dates that the different BITs that Turkey has with countries in Africa were concluded.

VIII. CONCLUSION

689. Turkey-Partnership Overview, supra note 155; see also Chigozie Enwere &

690.

Mesut Yilmaz, Turkey's Strategic Economic Relations with Africa: Trends and Challenges, 1 J. ECON. & POL. ECON. 216, 221 (2014).

[https://perma.cc/2P87-NWL4]

In 2005, the African Union granted Turkey an "Observer Status." See Nonthe AU, AFRICAN UNION, African States and Organisations Accredited (archived https://au.intlen/organs/Non-African-States Aug. 18, 2019). In 2008, the AU declared Turkey a "Strategic Partner" of the African Continent. See Africa's Strategic Partnership with Other Parts of the World, AFRICAN (archived UNION, https://au.int/en/partnerships/intro Aug. 18, 2019). The framework of Africa's strategic partnership takes four distinct forms: (i) continent to continent partnerships; (i) continent to country partnerships such as Africa-India, Africa-Turkey, Africa-China, and Africa-Japan; (iii) partnerships in demand as new states or regions request additional partnerships; and (iv) partnership with other institutions such as the Organisation of American States (OAS), the Commonwealth and La the Organisation of Islamic Conference Francophonie.

[https://perma.cc/6U2H-SK46]

(OIC)

691. Press Release, African Union, Signature of the Framework Cooperation Agreement Between the AUC Department of Economic Affairs and the Turkish Embassy (Sept. 10, 2018) (on file with author).

692. Press Release, African Union, Africa and Turkey Hold Second Africa Turkey

Forum to Promote Cooperation Opportunities (Oct. 11, 2018) (on file with author).

704. Investment Policy Hub -Turkey, supra note 1. 705. Bilateral Investment Treaties, supra note 266. 706. Id. 707. G20 Guiding Principles, supra note 268, at I V ("Investment policies and other policies that impact on investment should be coherent at both the national and

international levels and aimed at fostering investment, consistent with the objectives of sustainable development and inclusive growth.").

708. Agenda 2063: The Africa We Want, AFRICAN UNION

COMM'N, 2063.pdf (last visited Oct. 9, 2019)

https://www.un.org/enlafricalosaalpdflaulagenda [https://perma.cc/F2UB-RVBC] (archived Oct. 9, 2019).

709. Id. 710. Id. 711. Ali Bilgic & Daniela Nascimento, Turkey's New Focus on Africa: Causes and Challenges, NORWEIGIAN PEACEBULDING RES. CTR. (Sept. 2014), https://repository. lboro.ac.uk/articles/Turkey s_new focus_on_Africa-causes and-challenges/9467291 [https://perma.cc/N6D5-8NZL] (archived Oct. 9, 2019).

712. Sadik Unay, Economic Diplomacy for Competitiveness: Globalization and Turkey's New Foreign Policy, 15 PERCEPTIONS 21, 21 (2010) [hereinafter Unay, Economic Diplomacy for Competitiveness].

713. Gonca Biltekin & Volkan Ipek, Turkey's Foreign Policy Implementation in Sub-Saharan Africa: A post International Approach, 49 NEw PERSPECTIVES ON TURKEY 121, 121 (2013).

714. Elem Eyrice Tepeciklioglu et al., Turkish and BRICS Engagement in Africa, 8 J. SUSTAINABLE DEV. L. & POL'Y 48, 51 (2017) (observing that studies show that Turkey's soft power initiatives in SSA "have been an important complement to its official diplomatic and developmental efforts as well as its business and political interests in SSA.").

715. Zach Vertin, Turkey and the New Scramble for Africa: Ottoman Designs or 2019),

Unfounded https://www.brookings.edu/research/turkey-and-the-new-scramble-for-africa-ottomandesigns-or-unfounded-fears/ [https://perma.cc/NGL8-MX4L] (archived Oct. 9, 2019).

BROOKINGS

Fears?,

(May

INST.

19,

716. Tepeciklioglu et al., supra note 713, at 49 (observing that "Turkey's is also mostly driven by economic considerations,

engagement with Africa

Turkey's increasing involvement in Africa can be understood in terms of its political, economic, and development aid ambitions and motivations, framed through close economic ties with sub-Saharan countries (in the form of diplomatic activity, trade and aid), which are not only aimed at exploiting the sub-Saharan market, but also at establishing a Turkish presence in Africa visA-vis other, mainly Western, but also Southern, donor countries.717

predominantly by a quest for new export opportunities for Turkish companies. That is, the Turkish government aspires to create markets for Turkish products.").

717. Bilgic & Nascimento, supra note 710, at 3. 718. Id. (observing that it is still yet to be established to what extent Turkey's new approaches in Africa "can actually help to build up a sustainable and mutually beneficial cooperation relationship that has a positive impact on the living conditions of African people, or whether Turkey's new orientation towards Africa simply ends up reflecting the old principle of 'business as usual."').

719. Mehmet Ozkan, Turkey's Rising Role in Africa, 9 TURKISH POL'Y Q. 93, 103

(2010).

720.

Ibrahim Kalin, Turkish Foreign Policy: Framework, Values, and Mechanisms, 67 INT'L J. 7, 7 (2011); see also Kemal Kirieci, The Transformation of Turkish Foreign Policy: The Rise of the Trading State, 40 NEW PERSPECTIVES ON TURKEY 29, 29 (2009).

721. Paul Kubicek, Debating the Merits of

for Democratization in the Middle East, 12 ALTERNATIVES TURKISH J. INT'L REL. 66, 66 (2013); see also T.C. Bagbakanlik Dig Ticaret Miistegarliki, Turkey Trade Development Strategy Towards the Americas, ANKARA DTM (2006).

"Turkish Model"

722. Joshua Walker, Learning Strategic Depth: Implications of Turkey's New

Foreign Policy Doctrine, 32 INSIGHT TURK. 32, 32 (2007); see also Hongying Wand & Erik French, Middle Range Powers in Global Governance, 34 THIRD WORLD Q. 985, 985 (2013); Dmitri Trenin & Sinan Ulgen, A Place in the Sun or Fifteen Minutes of Fame? Understanding Turkey's New Foreign Policy, CARNEGIE ENDOWMENT FOR INT'L PEACE 2011/04/18/place-in-sun-or-fifteen(Apr. minutes-of-fame-understanding-turkey-s-new-foreign-policy-event-3266

18, 2011), https://carnegieendowment.org/

[https://perma.cc/8STJ-HU93] (archived Aug. 18, 2019); Uinay, Economic Diplomacy for Competitiveness, supra note 712.

[VOL. 52.:949

Compilation from Information Available on

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No723

723. Turkey-Senegal BIT, supra note 58, at art. 4 (Aricle 4, titled "Right to

Regulate", contains a security exception but not a standard general exceptions clause).

Yes725

724.

In 2017, Turkey negotiated a new treaty with Tunisia. However, the

Turkey-Tunisia BIT is not yet in force. Turkey-Tunisia BIT, supra note 45.

725.

Id. at art. IX ("This agreement shall not preclude the application by either Party of measures necessary for the maintenance of public order and morals, the fulfillment of its obligatiohs with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.").