The (Non-) Protection of Indigenous Rights in ISDS

Abstract

International investment law largely flows from the protections afforded foreign investors under bilateral and multilateral investment treaties.  Until recently, few of these treaties required investors to comply with human rights provisions in national constitutions or in international law, or preserved the ability of states to regulate to protect constitutional rights.  As a result, critics have argued, investor-state dispute settlement fails to protect human rights or preserve the ability of states to regulate in the public interest, and that arbitral awards rarely consider, let alone give effect to, rules of human rights. This article considers the question of how Indigenous rights, as a subset of human rights, are protected in international arbitration.  It examines the various international and domestic human rights instruments at play, including UNDRIP, as well as New Zealand’s Waitangi Clause and Canada’s Section 35 protections. It then examines arbitrations where Indigenous rights were at play – including Bear Creek v. Peru and South American Silver Limited v. Bolivia – and shows that the manner in which arbitrations have proceeded has effectively sidelined such protections.  Indigenous rights are only considered, it argues, when assessing the contributory negligence of investors.  It closes by considering other mechanisms that have been used to protect indigenous rights and then attempts to develop a theory of how and when Indigenous rights could be better protected