The Intersection Between Investment Law and Indigenous Peoples

A talk by Prof. Dr. Christina Binder, E.MA, Section for International Law and International Relations, University of Vienna, hosted by the Fortier Chair in International Arbitration & International Commercial Law.

Abstract

The concerns of indigenous peoples gain increasing importance in international investment proceedings. One of the reasons is their recent recognition as culturally distinct peoples, which goes along with a stronger protection of their land rights in international law. At the same time, the always denser net of bilateral investment treaties (BITs) – more than 2,900 by the end of 2013 –  plays a role. These developments increase the likelihood of interactions between indigenous peoples’ rights and international investment law and make the need for coordination between both systems more acute; even if, so far, indigenous rights have been dealt with only in very few investment cases.

Against that background, the presentation examines possible means to deal with interactions between international investment law and the rights of indigenous peoples in investment proceedings. It explores existing mechanisms such as treaty interpretation (Article 31(3.c) VCLT) or the amicus curiae participation of indigenous peoples. Likewise improved solutions/de lege ferenda options such as reference to human/indigenous rights in investment treaties or mandatory ex ante human rights/cultural impact assessments are discussed. Overall, the presentation argues that more needs to be done to mediate between the regimes of international investment law and the rights of indigenous peoples.