Investor-State Arbitration and Indigenous Rights

Abstract

Investment treaties and investor-state dispute settlement (isds) have significantly affected indigenous rights, and led to legal developments regarding both the substantive rights in investments treaties (such as the inclusion of ‘carve out clauses’ intended to preserve the rights of indigenous peoples from foreign investors), and how tribunals deal with indigenous rights when adjudicating disputes. This article examines developments in this niche jurisprudence and discusses the implications thereof. It firstly considers the various rights of indigenous peoples seen to be at play in an international law context, and the various legal instruments in which some of those rights are reflected and derived from. Secondly, the article examines a selection of relevant investment treaties which have provisions affecting the rights of indigenous peoples that have been considered by tribunals. More recent investment treaties that have developed provisions which affect indigenous rights are also considered. Thirdly, this article examines how indigenous rights have been applied by tribunals in isds. Fourthly, it explores how indigenous rights may be further applied in isds and considers the practical application thereof. In doing so, it is argued that the development of isds jurisprudence in cases concerning indigenous rights, indicates an openness to considering, incorporating, and applying indigenous rights in isds.