Investigating the tension between indigenous peoples and foreign investors’ rights: possible ways of reconciliation

Abstract

Throughout the years, states have recognized more and more protection to indigenous peoples, whose history is characterized by subjugation, discrimination and violence. Nevertheless, nowadays, indigenous peoples’ vulnerable position is constantly endangered by the states’ practice to grant concession to foreign investors, without indigenous free, prior and informed consent. Despite international agreements regulating investment between two or more states with the purpose of seeking development, national governments generally fail to respect, protect and fulfil indigenous procedural rights and substantive rights to lands, territory and natural resources. The tension between indigenous peoples’ rights and investors’ rights is exacerbated by the host state while adopting legislative or administrative measures to remedy to the breach of pre-existing indigenous rights. From investment perspective, this specific situation entitles foreign investors to claim the breach of their rights before the investor-state dispute settlement mechanism, as agreed in the investment treaty. Focusing the attention on the South-American scenario, this thesis is intended to analyze three practical cases of clash between the opposite interests held by indigenous peoples and foreign investor. In particular, this work aims to shed lights on the limits faced by arbitral tribunals to deal with the consideration of indigenous peoples’ position while simultaneously attempting to favour indigenous peoples in the interpretation of the conflict. This is of particular relevance when constitutional and customary international law are at stake, due to the unlawfulness of the investment. Although states have committed themselves to respect international human rights obligations, the present work shows the lack of adequate normative instruments protecting indigenous peoples’ rights in investment arbitration. A potential solution to bridge the gap would include the insertion of specific provisions within investment agreements allowing for a more substantial states’ regulatory space to safeguard the well-being and survival of indigenous peoples.