Advancing indigenous peoples' sovereignty in international environmental treaties: a call for exception clauses in international trade and investment law

Abstract

Indigenous peoples face persistent threats from extractive industries and state-led development, often without sufficient legal safeguards. International environmental treaties, while referencing Indigenous rights, typically use non-binding language that enables weak or selective implementation. This paper aims to identify how treaty design can more effectively protect existing domestic Indigenous protections. Drawing on trade and investment law examples-such as New Zealand's Treaty of Waitangi clauses and Colombia's reservation lists-it argues for systematically incorporating explicit carve-out mechanisms into environmental and human rights treaties. Naming Indigenous groups and domestic laws within treaty texts can strengthen legal certainty and shield protections from erosion. The paper concludes with recommendations for negotiators, including legal audits, inter-ministerial coordination, and capacity-building to help states, particularly in the Global South, design carve-outs that reinforce Indigenous sovereignty.