Part I The UNDRIP’s Relationship to Existing International Law, Ch.4 The UNDRIP and Interactions with International Investment Law
Edited By: Jessie Hohmann, Marc Weller
- Indigenous peoples — Pollution
Interactions between international investment law and Indigenous rights are becoming more frequent. On the one hand, there is a quantitative increase in foreign investments. These investments are protected by an ever-denser net of bilateral investment treaties (BITs)—close to 3,000 by the end of 2015.1 On the other hand, Indigenous peoples’ territories are often resource-rich areas with significant attraction for foreign investors. This entails a considerable risk that investment projects on Indigenous territories—for example, concessions for resource exploitation—encroach upon Indigenous rights. Negative consequences include detrimental impacts on Indigenous peoples’ relationship to their lands, environmental degradation, and pollution. These risks are even more acute given the importance of lands for Indigenous culture. Indigenous rights thus increasingly conflict with the rights of foreign investors and show an evident need for coordination between both systems—Indigenous peoples’ rights and international investment law.2
Against that background, it seems of particular interest whether the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)3 adds new perspectives to interactions and conflicts between investment law and Indigenous rights. What is the UNDRIP’s legal impact in the field? What contribution has it made to the state of law? And, are there still aspirations de lege ferenda? Since, so far, Indigenous rights have been very rarely raised (p. 88) in investment proceedings with even less reference made to the UNDRIP,4 the issues will be discussed mainly from a theoretical viewpoint.
At the outset, this contribution examines the UNDRIP’s legal impact concerning those Indigenous rights which are of relevance in the context of investment law (Section 2). Then, interactions and conflicts between Indigenous peoples’ and foreign investors’ rights are outlined on the basis of relevant human rights (Section 3) and investment law jurisprudence (Section 4) taking into account the UNDRIP’s role. In the following, existing techniques to improve interactions between Indigenous rights and investment law before international investment tribunals will be addressed with special focus on the UNDRIP’s contribution thereto (Section 5). Finally, improved solutions to further interactions between investment law and Indigenous rights are explored and assessed against the UNDRIP’s aspirations de lege ferenda (Section 6). Section 7 concludes.
The UNDRIP contains numerous provisions which are possibly at stake when activities of foreign investors impact on Indigenous territories.5 First, the Declaration recognizes the distinct cultural identity of Indigenous peoples (eg in Articles 5, 8, 9, 11, 12), including a right to maintain, control, protect, and develop their cultural heritage (Article 31(1)). Likewise, Indigenous land rights are recognized to a far-reaching extent. More particularly, the UNDRIP acknowledges Indigenous peoples’ specific relationship with their territories (Article 25) and their right to lands, territories, and resources which Indigenous peoples have traditionally owned, occupied, or otherwise used (Article 26).6 Accordingly, Indigenous land rights must be secured to the extent that is necessary to preserve the spiritual relationship of the people (or community) concerned with its ancestral lands.7 What is more, the UNDRIP also obliges States to cooperate and consult with Indigenous peoples in good faith in order to obtain their free, prior, and informed consent before adopting or implementing measures that may affect them (Article 19), especially as regards projects affecting their lands (Article 32). While the UNDRIP is not explicit whether this implies a general right to veto projects8 which affect Indigenous References(p. 89) lands.9 Still, even further going rights, including a right to veto, refer to the relocation of Indigenous peoples10 and the storage or disposal of hazardous materials in the lands or territories of Indigenous peoples.11 The right to self-determination of Indigenous peoples is recognized in Article 3 of the UNDRIP.12
The UNDRIP therewith contributes to a further strengthening of Indigenous rights. True, as a General Assembly Resolution, the UNDRIP is not legally binding. Still, key provisions in the Declaration, including its land rights provisions and the necessary participation of Indigenous peoples in decisions which affect them, are generally considered as a codification of customary international law.13 Therewith, the UNDRIP contributes to substantive law by codifying significant parts of Indigenous rights.14 Moreover, even those rights in the UNDRIP which are not yet reflective of customary international law present parameters of reference for any recognition of Indigenous rights.15
From the investment law perspective, the UNDRIP contains key provisions of relevance for interactions between Indigenous peoples’ rights and investment law. It strengthens Indigenous rights. In so doing, the UNDRIP increases the potential for conflicts with the rights of foreign investors.16 Of particular relevance are the codification of Indigenous land rights and the necessary involvement of Indigenous peoples in decisions which affect them. This is also reflected in the case law of international human rights monitoring institutions.
References(p. 90) 3. The UNDRIP, Indigenous Rights, and Foreign Investments in the Jurisprudence of Human Rights Monitoring Institutions
The UNDRIP confirms the ongoing evolution of Indigenous rights. The development of relevant standards is also evident in the jurisprudence of human rights monitoring institutions. Due to the increasing rights of Indigenous peoples, conflicts between them and investors become increasingly likely. This is evidenced in the case law of the respective institutions. Human rights monitoring institutions increasingly find violations of Indigenous rights which are caused by activities of foreign investors. Also, the jurisprudence of the Inter-American Court of Human Rights is especially far-reaching. The Inter-American Court increasingly draws on the UNDRIP. That is why the following discussion is largely based on the jurisprudence of the Inter-American Court of Human Rights.17
In particular, recent judgments of the Inter-American Court of Human Rights have found violations of Indigenous rights in case of investment projects having an effect on Indigenous lands. Already in its 2001 landmark decision Awas Tingni v Nicaragua (2001), the Inter-American Court found Nicaragua in violation of the Indigenous Awas Tingni community’s right to property (Article 21 of the American Convention on Human Rights (ACHR)) for having consented to timber-logging activities by a South Korean corporation on lands traditionally occupied by the Awas Tingni community.18 This jurisprudence was confirmed in subsequent cases. In Yakye Axa v Paraguay (2005) and Sawhoyamaxa Indigenous Community v Paraguay (2006), the Inter-American Court of Human Rights ordered Paraguay to restore ancestral land which was in the hands of private investors to Indigenous groups.19 In Saramaka People v Suriname (2007), the Inter-American Court found that Suriname breached Article 21 of the ACHR for issuing mining concessions to foreign companies on territories traditionally occupied by the Saramaka people without the establishment of adequate safeguards to ensure that the concessions would not cause harm to the people and its territories.20 In Kichwa Indigenous People of Sarayaku v Ecuador (2012), the Inter-American Court held that Ecuador violated the land rights as well as the right to cultural identity of the Sarayaku Indigenous people, who had not been consulted before resource exploitation projects by foreign investors were carried out in its traditional lands.21
References(p. 91) Likewise, the Inter-American Commission on Human Rights issued relevant decisions. For example, in Mary and Carrie Dann v United States, the Commission found that the United States had not acted in conformity with their obligations under the 1948 American Declaration of the Rights and Duties of Man when granting gold-mining prospecting within the traditional lands of the Western Shoshone’s Indigenous people which affected the Dann’s use of the lands and polluted the water.22 The potential for conflicting State obligations is also evidenced in Africa in the jurisprudence of regional human rights monitoring institutions. For instance, the African Commission on Human and Peoples’ Rights found Nigeria in violation of numerous provisions of the African Charter on Human and Peoples’ Rights in relation to a project on oil production on the lands of the Indigenous Ogoni community, which had resulted in environmental degradation and health problems for members of the Ogoni.23
References to the UNDRIP play an increasing role especially in the jurisprudence of the Inter-American Court of Human Rights. In both cases handed down after the Declaration’s adoption—Saramaka People v Suriname and Sarayaku v Ecuador—the Inter-American Court relied on the UNDRIP in its discussion of Indigenous peoples’ rights.24 In Saramaka People v Suriname, the Inter-American Court drew on Article 32 of the UNDRIP when discussing ‘safeguards against restrictions on the right to property that deny the survival of the Saramaka people’ to support its arguments25—the latter with an explicit (footnote) reference to Suriname’s statement in the process of adoption of the Declaration.26 The Court held:
… the restrictions in question pertain to the issuance of logging and mining concessions for the exploration and extraction of certain natural resources found within Saramaka territory. Thus, in accordance with Article 1(1) of the Convention, in order to guarantee that restrictions to the property rights of the members of the Saramaka people by the issuance of concessions within their territory does not amount to a denial of their survival as a tribal people, the State must abide by the following three safeguards: First, the State must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan … within Saramaka territory. Second, the State must guarantee that the Saramakas will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment. These safeguards are intended to preserve, protect and guarantee the special relationship that the members of the References(p. 92) Saramaka community have with their territory, which in turn ensures their survival as a tribal people …
… Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples, which was recently approved by the UN General Assembly with the support of the State of Suriname, states the following:
Even more extensive references to the UNDRIP were made in the Sarayaku v Ecuador case.28 The Inter-American Court drew on the UNDRIP to support its reading of various Indigenous rights. First, the Court interpreted the necessary consultation of Indigenous peoples when measures affect their lands with according (footnote) references to the UNDRIP:
It is for all the aforementioned reasons that one of the fundamental guarantees for ensuring the participation of indigenous peoples and communities in decisions regarding measures that affect their rights and, in particular, their right to communal property, is precisely the recognition of their right to consultation, which is recognized in ILO Convention No. 169, among other complementary international instruments.29
Likewise, in relation to the right to cultural identity of Indigenous peoples, the Inter-American Court of Human Rights referred to the UNDRIP and stated:
Two international instruments are particularly relevant to the recognition of the right to cultural identity of indigenous peoples: the ILO Convention No. 169 on indigenous and tribal rights and the United Nations Declaration on the Rights of Indigenous Peoples.30
Finally, the Inter-American Court also relied on Article 1 of the UNDRIP when recognizing ‘[Indigenous peoples’] rights as collective subjects of international law and References(p. 93) not only as individuals’.31 The UNDRIP’s legal impact thus is most obvious in the case law of the Inter-American Court of Human Rights.
It is especially the jurisprudence of the Inter-American Court of Human Rights that illustrates the UNDRIP’s contribution to the state of law in disputes concerning investment projects on Indigenous territories. The Court established violations of Indigenous rights in case of resource exploitation activities by foreign investors with explicit reference to the UNDRIP. Its approach exemplifies the Declaration’s contribution to the state of law. At the same time, this strengthening of Indigenous rights increases the potential for conflicts between Indigenous rights and those of foreign investors.
The constellations governing such conflicts are usually quite similar und involve a triangular relationship between States, Indigenous peoples, and foreign investors. Generally, the controversy’s origin is a State’s granting of an extractive activity or resource-exploitation project in contradiction to pre-existing rights of Indigenous peoples.32 When the State subsequently wants to correct such a situation by imposing specific regulations to safeguard Indigenous (land) rights without compensating the investor, an investment dispute scenario can arise and the foreign investor may resort to investment arbitration in view of the host State’s interference with their investment. Possible investment claims at stake are unlawful expropriation—when governmental measures to protect Indigenous lands reduce the economic value of an investment project to an extent that this amounts to expropriation—as well as breaches of the fair and equitable treatment (FET) standard, of non-discrimination, or of full protection and security clauses.33
Importantly, this is less an issue of incompatible obligations than one of monetary compensation of foreign investors.34 The expropriation of foreign investors to give effect to competing territorial claims of Indigenous peoples is not as such illegal. Rather, compensation has to be paid. Still, the usually high amounts of compensation may pose a problem to host States. A related question as regards interactions/conflicts between investment law and Indigenous rights is, consequently, to what extent States can rely on Indigenous rights—and especially on the UNDRIP—as a ‘shield’ against claims brought by foreign investors.
Against that background, it seems of particular interest which cases have effectively been brought before investment tribunals and whether references to the UNDRIP have been made, ie whether the UNDRIP has played a role in the jurisprudence of investment tribunals.
So far, Indigenous issues have been at stake only in very few investment cases.35 Merely a handful of controversies arising from investment projects on Indigenous lands have reached the adjudication phase before international investment tribunals and even fewer have been declared admissible. This may be explained by the fact that some disputes are settled at the national level and others are resolved through ‘extra-judiciary settlements’. In still other cases, no dispute is brought before investment tribunals since domestic authorities are complicit in the violations of Indigenous land rights and abstain from interfering with the rights of foreign investors. In any case, the investment tribunals’ jurisprudence—as discussed below—illustrates the UNDRIP’s possible contribution to the state of law as regards Indigenous rights at least in the abstract. One of the cases—Grand River Enterprises v United States—makes explicit reference to the UNDRIP.
The investment cases which reached the adjudication phase dealt with issues of considerable importance for Indigenous peoples. Still, Indigenous rights generally played a very limited role in the tribunals’ reasoning. The first and perhaps best known is Glamis Gold v United States (2009).36 Glamis Gold concerned US federal and Californian measures in relation to open-pit mining operations which impacted on Indigenous (the Quechan Indian Nation’s) cultural sites. The measures—including regulations requiring the backfilling of mines—inter alia aimed at the protection of these cultural sites. Glamis submitted a claim under the North American Free Trade Agreement (NAFTA) in 2003, arguing that the destruction of the economic value of its investment amounted to expropriation, that the FET standard was violated, and that it was discriminated against since its project was subject to more onerous regulations than those of other operators. The US government relied on federal and State laws which accorded protection to tribal sacred sites and other tribal resources. The Indigenous Quechan tribe participated as amicus curiae.37 In the award, the Glamis Gold tribunal did not find the United States in breach of their obligations. The required backfilling measures were not of sufficient economic impact on the investment to amount to expropriation.38 Likewise, the FET standard was not breached since the measures were of general application.39 The award is thus, in result, favourable to the Quechan Indian Nation’s rights since the US measures which accorded protection to their sacred sites were accepted. However, the Indigenous concerns played, at best, a minor role in the tribunal’s reasoning.
References(p. 95) In Chevron Corporation and Texaco Petroleum Company v Ecuador,40 Chevron resorted to investment arbitration before the Permanent Court of Arbitration against the judgment of an Ecuadorian court, ordering that it had to pay US$18.6 billion to Indigenous communities as damages for dumping toxic waste in the Amazon.41 Chevron argued, inter alia, a breach of Ecuador’s obligations under the US–Ecuador BIT, including a violation of the FET standard, of full protection and security, as well as of non-arbitrary and non-discriminatory treatment.42 Chevron asked the tribunal to declare that any (domestic) judgment on the issue was not final and enforceable.43 While the tribunal had issued several interim awards ordering Ecuador to stop enforcing the judgment,44 the dispute is still pending at the time of writing.
In Burlington v Ecuador,45 the claimant, a US oil and gas company which had obtained a hydrocarbon concession in the Amazon rainforest, argued that Ecuador was responsible for not providing full protection and security to its investment against attacks from local Indigenous communities opposing the project. The ICSID tribunal, however, dismissed the claim on procedural grounds.46 It thus did not deal with this issue on the merits.
Gallo v Canada47 related to an investment in open-pit mining and the adjacent construction of a rubbish dump site in the Canadian state of Ontario. The Ontario government had enacted legislation which prevented the investor from acquiring the lands next to its project for the construction of the rubbish dump site.48 On this basis, the investor (Gallo) brought a claim under NAFTA for unlawful expropriation and also claimed a violation of the FET standard. In defence, Canada relied, inter alia, on the rights of local aboriginal peoples, especially land rights, which would have been violated had the purchase of the land by the investor been permitted.49 The NAFTA tribunal dismissed the investor’s claim for lack of jurisdiction and consequently did not discuss the merits of the case.50
References(p. 96) In Pac Rim v El Salvador, decided in October 2016, the subject of dispute was a mining concession (El Dorado Project) which was not granted to the claimant by El Salvador after local and national protests had taken place in the host State.51 Although the ICSID tribunal held that the claimant had indeed no legal right to the concession under Salvadoran Mining Law, it failed to address the submission put forward by the amicus curiae advancing that El Salvador’s international human rights obligations supported El Salvador’s measures.52
Also, there were—as of November 2016—two pending cases which could bring new findings to light as regards the importance attributed to the UNDRIP. The first is the South American Silver Mining (SAS) v Bolivia arbitration before the Permanent Court of Arbitration. In SAS, the claimant sought compensation for the alleged expropriation of investments (the nationalization of mining concessions) and violation of the FET standard.53 Both Bolivia and SAS dealt in the counter-memorial and the reply to the counter-memorial with the UNDRIP and its legal nature and implications.54
In the second case, Bear Creek Mining Corporation v Peru, the company claimed direct expropriation under the Peru–Canada Free Trade Agreement (FTA) after the respondent had withdrawn the company’s concession to operate the Santa Ana silver-mining site55 following the protest of the Aymara Indigenous people.56 While the parties’ memorials did not refer to the UNDRIP,57 one of the amicus curiae submissions relied on the UNDRIP (Articles 12, 26).58
References(p. 97) In the above cases, the activities of foreign investors interfered or had the potential to interfere with the rights of Indigenous peoples.59 Investors were thus potential perpetrators of human/Indigenous rights violations. Investments and economic activities conflicted with the non-economic, cultural rights of Indigenous peoples, as prominently enshrined in the UNDRIP. The rights most at stake were Indigenous peoples’ rights to cultural identity, land rights, and participation in decisions which affect them.60
In Grand River Enterprises Six Nations, Ltd v United States, conversely, the foreign investors themselves were Indigenous and relied on their First Nation status to argue preferential treatment in a NAFTA arbitration.61 Put differently, they claimed special economic privileges in reliance on their Indigeneity. Grand River is thus one of the exceptional cases where investors have referred to their status as Indigenous peoples to support their claims.62 The Grand River case is even more outstanding for the investment tribunal’s extensive reference to the UNDRIP to delineate the scope of investors’ rights.
The claimants controlled a Canadian company which was engaged in the tobacco-exporting business to the United States. They maintained that their investment had been harmed by a US regulation which required contributions of tobacco companies to health expenses for tobacco patients. Their arguments, inter alia, referred to the issue that the measures amounted to expropriation and breached also the customary international law minimum FET standard. They stated that the US measures were inconsistent with their ‘legitimate expectation … not to be subject to regulatory action’63 because of their status as one of the First Nations in North America. In doing so, the claimants extensively relied on the UNDRIP in support of their arguments.64 The tribunal did not decide on the claim for immunity from State regulation, but rather held that there could not be a reasonable expectation not to be subject to State regulation when engaging in large-scale tobacco distribution business.65 It also found that the measure did not amount to expropriation since the claimants’ business remained profitable.66 In the end, the Grand River tribunal dismissed the claim. Still, the award remains interesting for its far-reaching reference to Indigenous rights. Most importantly, the Grand River tribunal affirmed a right to consultation of Indigenous peoples with explicit reference to Article 19 of the UNDRIP:
It may well be … that there does exist a principle of customary international law requiring governmental authorities to consult indigenous peoples on governmental policies or actions significantly affecting them. One member of the Tribunal has written that there is such a customary rule. Moreover, a recent study by a committee of several international law experts assembled under the auspices of the International Law Association, after an exhaustive survey of relevant state and international practice, found a wide range of customary international law norms concerning indigenous peoples, including ‘the right to be consulted with respect to any project that may affect them’. As pointed out by the Claimants, the duty of states to consult with indigenous peoples is featured in the UN Declaration on the Rights of Indigenous Peoples, particularly in its Article 19 as well as in several other articles. In its Counter-Memorial the Respondent maintained in sweeping terms that the Declaration does not represent customary international law, as did Canada in its non-disputing party submission. However, when questioned by the Tribunal on this point at the hearing, the Respondents’ counsel stated that some parts of the Declaration could reflect fundamental human rights principles and emerging customary law.67
The Grand River case thus especially illustrates the UNDRIP’s contribution to the state of law and its potential legal relevance for investment cases.
The investment cases discussed above deal with matters of immense relevance for Indigenous peoples. Although reliance on Indigenous rights—and more particularly on the UNDRIP—did not play an important role for their outcome, the cases highlight the need to deal with Indigenous concerns in investment proceedings. The UNDRIP’s ample codification of Indigenous rights thus increases the potential for interactions and conflicts between Indigenous peoples’ rights and investment law. A development which is likely to continue with the always stronger recognition of Indigenous rights.
Grosso modo, two types of situations may be distinguished: reliance on Indigenous peoples’ rights as a ‘shield’ (see, eg, Glamis Gold, Burlington, Chevron, South American Silver) and as a ‘sword’ (Grand River). As regards the former, host States, when taking action to protect Indigenous peoples which interferes with investors’ rights, are in principle able to use Indigenous rights as a ‘shield’. Reliance on Indigenous rights (as contained in the UNDRIP) may thus serve as a defence against alleged breaches of investment agreements.68 The UNDRIP’s (potential) contribution to the state of law in these constellations is that it should strengthen a host State’s position when relying on Indigenous rights in defence against claims brought by foreign investors. Still, almost no reference seems to have been made to the UNDRIP in the respondent States’ memorials69 References(p. 99) or in the reasoning of the investment tribunals so far.70 Reliance on Indigenous rights as a ‘sword’, conversely, relates to claims of preferential treatment by investors. Indigenous investors then claim economic privileges for being Indigenous. As elaborated above, in the Grand River case, claimants extensively relied on the UNDRIP, and also the tribunal made according references to the Declaration.
Accordingly, in both instances—reliance on Indigenous rights as a ‘shield’ and as a ‘sword’—the UNDRIP’s contribution to the state of law has the potential to shape interactions between Indigenous and investors’ rights. It seems thus of particular interest to examine means to coordinate between the systems. How should interactions between both—Indigenous rights and investment law—be dealt with? What are the techniques of coordination? And what are the possible contributions of the UNDRIP in the field?
5. The UNDRIP’s Contribution to Existing Means to Deal with Indigenous Rights in Investment Contexts
The growing recognition of Indigenous rights—most prominently through the UNDRIP—increases the need to coordinate between investment law and Indigenous rights when they interact or conflict with each other. As will be shown, there are several possibilities to take Indigenous rights into account in investment disputes. These include jurisdiction and applicable law, treaty interpretation, and the amicus curiae participation of Indigenous peoples in investment proceedings. Also, enhanced transparency requirements in investment proceedings and the human/Indigenous rights education of arbitrators may further the Indigenous cause.
The UNDRIP contributes at various levels to these techniques, shapes them, and changes approaches thereto. As regards jurisdiction and applicable law as well as treaty interpretation, the recognition of Indigenous rights in the UNDRIP—especially insofar as they codify customary international law—may be of relevance for substantive standards. Also procedurally, the UNDRIP calls for a maximum respect for Indigenous rights.71 Concretely, it does so by emphasizing the right to be heard of Indigenous peoples in investment proceedings (eg as amicus curiae), and, more in the abstract, by pushing for increased transparency requirements.
Still, notwithstanding the range of possibilities to address interactions between Indigenous rights and investment law at the disposal of investment tribunals, the tribunals so far do not seem to have made use of them: not in relation to Indigenous rights, and only to a very limited extent in the broader investment law and human rights debate.72 One major reason for this lack of judicial treatment certainly lies in the fact that the parties rarely put forward Indigenous or human rights arguments in investment References(p. 100) proceedings.73 For this reason, the different techniques and the UNDRIP’s possible contribution will have to be discussed mostly in the abstract.
By strengthening the relevant standards with regard to Indigenous rights, the UNDRIP contributes in terms of applicable law.74 More particularly, the UNDRIP increases investment tribunals’ possibilities to refer to Indigenous rights—as ‘norms, applicable between the parties’ concerning those provisions which constitute a codification of customary international law. This is, however, under an important caveat. The extent to which an investment tribunal will be able to rely on the rights of Indigenous peoples depends to a large extent on the jurisdictional clause in the investment treaty. A tribunal’s jurisdiction is limited to what the parties have consented to. Thus, the broader a jurisdictional clause is framed, the more room is—in principle—left to a tribunal for the possible consideration of alleged violations of Indigenous rights, if and to the extent that they affect the investment.75 Article IX of the Norway–Lithuania BIT is an example of a broad jurisdictional clause. It covers ‘any dispute which may arise between an Investor of one Contracting Party and the other Contracting Party in connection with an investment’.76 In case of such broad jurisdictional clauses it would be—at least in principle—within the scope of jurisdiction of the investment tribunal to examine violations of Indigenous peoples’ rights should they arise ‘in connection with an investment’.77 The UNDRIP’s contribution to further incorporate Indigenous rights into investment proceedings thus has the most potential with regard to such broad jurisdictional clauses.78
With the above considerations in mind, the UNDRIP’s possible contribution in terms of applicable law is as follows. The applicable law generally opens some room for an investment tribunal to look into alleged violations of Indigenous peoples’ rights which relate to the investment dispute. Typical choice-of-law clauses in investment treaties refer to the law of the host country and such rules of international law as are applicable.79 Tribunals could thus—provided that the jurisdictional clause is broad enough—draw upon relevant instruments for the protection of Indigenous rights as part of the applicable international law of treaties (see, eg, ILO Convention 169) or as applicable customary international law. Especially for the latter, the UNDRIP’s codification of relevant rights References(p. 101) seems important. In a similar vein, tribunals could also apply Indigenous rights as part of the law of the host State.80
In case of conflicting obligations, for example, when Indigenous land rights conflict with competing claims of foreign investors, tribunals could draw on relevant techniques for the resolution of norm conflicts (especially the lex posterior and lex specialis principles).81 A tribunal might even consider a hierarchy of norms in case of jus cogens obligations. Indigenous rights which would trump competing investor claims for being classified as jus cogens might include the right to self-determination of Indigenous peoples or their right not to be subject to cultural genocide in case of consistent violations of their territories and cultural heritage.82 In this context, the UNDRIP’s codification of the right to self-determination of Indigenous peoples and their right not to be subjected to forced assimilation or destruction of their culture in Articles 3 and 8 of the UNDRIP seems of particular relevance. So far, however, these techniques do not appear to have ever been applied by investment tribunals.
Also, ‘in accordance with host State law-clauses’ can be a means to give effect to Indigenous rights, to the extent that these rights are part of the law of the host State. They are of particular importance in case of open constitutional provisions with general references to, eg, ‘international human rights law’ and thus also to the UNDRIP insofar as it codifies customary international law.83 Several investment treaties include ‘in accordance with host State law-clauses’ in the definition of the investment.84 Investments which are made in violation of host State laws do not enjoy protection under the respective BIT. Investors can thus lose their protection in cases of serious violations of Indigenous rights which are at the same time a breach of the domestic law of the host State. What is more, even without ‘in accordance with host State law-clauses’, tribunals have examined whether investments were made in accordance with the law of the host State before granting protection.85 The requirement that investments must not to be made in violation of the domestic law of the host State can thus be a means to protect Indigenous rights.
The issue becomes more problematic where a State wants to subsequently—after an investment was made—amend its laws to give effect to Indigenous rights. ‘In accordance References(p. 102) with host State law-clauses’ usually refer to the time the investment is made.86 They will thus not cover subsequent legislative changes enacted by a State—for instance, to bring its laws into line with relevant standards on Indigenous rights.87 Such subsequent legislative changes may accordingly conflict with foreign investors’ rights.
Overall, the UNDRIP—by codifying customary international law and detailing and affirming relevant norms—should, in principle, increase an investment tribunal’s means to refer to Indigenous rights. This with the caveat that the possible reference to Indigenous rights depends largely on the wording/provisions of the respective investment treaty as well as, obviously, on the arguments put forward by the parties.
Also for treaty interpretation, a further ‘technique’ for investment tribunals to refer to Indigenous rights in investment proceedings, the UNDRIP’s codification of certain Indigenous rights is of relevance. Especially the so-called ‘principle of systemic integration’ of Article 31(3)(c) of the Vienna Convention on the Law of Treaties88 (VCLT) is important.89 It provides that in the interpretation of a treaty ‘there shall be taken into account, together with the context … any relevant rules of international law applicable in the relations between the parties’. Article 31(3)(c) of the VCLT may thus, in principle, be an important tool to interpret an investment treaty in accordance with relevant Indigenous—or human—rights.
Insofar as relevant standards on Indigenous rights are binding on the parties, an investment tribunal could refer to Indigenous rights in reliance on Article 31(3)(c). In an ideal world, the UNDRIP’s far-reaching recognition of Indigenous rights could thus contribute to increased references to Indigenous rights by investment tribunals insofar as it codifies customary international law. This is, on the one hand, when Indigenous investors claim preferential treatment for being Indigenous. A tribunal could thus interpret the relevant investment treaty provisions in a way which is favourable to the claims of the Indigenous investors. In fact, the Grand River tribunal referred very broadly to References(p. 103) Indigenous rights, including to the UNDRIP, in its interpretation of the relevant State obligations arising under the investment treaty.90 However and deplorably, the tribunal failed to discuss the principle of systemic integration, as outlined in Article 31(3)(c) of the VCLT.
Second, the UNDRIP can promote reference to Indigenous rights when a host State relies on Indigenous rights as a ‘shield’. An investment tribunal could thus refer to relevant standards on Indigenous rights—insofar as they are binding between the parties—to adopt an ‘Indigenous rights’ friendly interpretation of the investment treaty’s provisions and take a position which is favourable to the host State’s defences. This especially applies in case of broad treaty terms—for instance, when determining the meaning of the FET standard, when interpreting full protection and security clauses, or in relation to direct or indirect expropriation.91 So far, this does not seem to have occurred.92
Also more generally, practice is scarce and there seems to be a certain reluctance of investment tribunals to take external norms—ie relevant human and Indigenous rights—into account. Apart from the Grand River case, no reference to Indigenous rights was made by investment tribunals. The reasons for this limited reference are multiple. First, the narrow object and purpose of most BITs—being focused on investment protection—may prevent due reference to relevant human and Indigenous rights through interpretation.93 Also, the private law background of many investment arbitrators may play a role in the limited reliance on human rights treaties and on instruments enshrining Indigenous rights.94 Finally, if alleged violations of Indigenous rights are not raised in the submissions of the parties to the dispute, the investment tribunal may not even know about them.95 Overall, the UNDRIP’s possible impact thus seems to be very limited so far. While the UNDRIP, through its codification of relevant norms, in principle facilitates an investment tribunal’s task to refer to Indigenous rights in treaty interpretation, in practice, this does not seem to have been the case—yet (?).
References(p. 104) 5.3 Amicus Curiae Participation of Indigenous Peoples in Investment Proceedings
The—so far—limited reference to Indigenous rights in investment proceedings raises questions of how best to inform an investment tribunal about the Indigenous concerns at stake. The participation of Indigenous peoples through amicus curiae/non-disputing party submissions thus seems most important. Since Indigenous peoples typically are not parties to the proceedings, but ‘merely’ affected by investment activities, amicus curiae submissions are an important procedural means to voice their concerns. Such increased participation of Indigenous peoples in investment proceedings96 acknowledges the UNDRIP’s recognition of Indigenous peoples as distinct peoples (see, eg, Article 3) and their right to determine strategies for the development or use of their lands, territories, and resources (Article 32(1)).
Amicus curiae submissions should support the tribunal in achieving a more complete vision of the factual and legal background of a case.97 They are sometimes explicitly dealt with in investment treaties. Certain BITs refer to the possibility to submit amicus curiae and generally leave it to the discretion of the arbitral tribunal to accept such submissions.98 Also, if nothing is explicitly mentioned in an investment treaty, it wil be within the discretion of ICSID tribunals whether to allow amicus curiae briefs.99 Respectively, the values expressed in the UNDRIP, including the recognition of Indigenous peoples as distinct peoples, should generally push an investment tribunal to accept amicus curiae submissions by Indigenous peoples when their interests are at stake.
The investment cases which have touched upon Indigenous issues so far have shown a certain practical relevance of amicus curiae submissions.100 These submissions generally relied on the UNDRIP to sustain their arguments. In Glamis Gold, the Quechan Indian Nation submitted an amicus curiae brief which supported the US government’s position References(p. 105) as regards the necessary preservation and protection of Indigenous rights in ancestral lands.101 An amicus curiae brief was likewise filed in Chevron v Ecuador, maintaining that the dispute was both outside the jurisdiction of an investor-State tribunal and non-justiciable.102 Also in the Grand River case, the Office of the National Chief of the Assembly of Canadian First Nations supported the Indigenous investors through an amicus curiae brief.103 In these cases, amicus curiae submissions were thus a means to convey Indigenous concerns, even though they do not seem to have influenced the outcome of the cases.104
Enhanced requirements of transparency may also be important to further the respect for Indigenous rights,105 as codified, inter alia, in the UNDRIP. Transparency requirements subject investment proceedings to public scrutiny by civil society, media, and NGOs. They thus counter the often-criticized secrecy of investment proceedings. True, far-reaching transparency requirements in investment treaties remain rare.106 Still, there is a general References(p. 106) trend towards more transparency. This can also be evidenced, most importantly, in the recent UNCITRAL Rules on Transparency in Treaty Based Investor-State Arbitration.107 This may be beneficial to the Indigenous cause because violations of Indigenous peoples’ rights are exposed to public scrutiny and pressure. With the increased prominence given to Indigenous rights inter alia by the UNDRIP, transparency requirements will hopefully have even more impact in the future.
Finally, the education and expertise of individual arbitrators is a relevant factor for the promotion of Indigenous rights—including through references to the UNDRIP—in investment proceedings. The private/commercial law bias of investment proceedings has been viewed as a possible impediment to a due appreciation of common concerns, including human rights concerns.108 A broader public international law expertise might thus induce arbitrators to also consider the relevant public interests—ie human and Indigenous rights considerations—at stake, beyond the resolution of a particular investment dispute. In fact, specific human or Indigenous rights expertise might be particularly beneficial for the arbitrators’ comprehension of Indigenous concerns. In Grand River, such expertise was ensured by one of the three arbitrators, S James Anaya, the former Special Rapporteur on the Rights of Indigenous Peoples. His expertise becomes apparent between the lines of the award109 and seems to have positively contributed to a harmonious reading of both systems, Indigenous rights and investment law. In fact, Grand River is so far the only investment case with an explicit reference to the UNDRIP in the award.
Several possibilities exist to take Indigenous rights into account in investment disputes. They range from a tribunal’s jurisdiction and the applicable law to procedural means such as amicus curiae submissions by Indigenous peoples and the human/Indigenous rights education of arbitrators. In principle, these techniques apply to both, when Indigenous rights are used as a ‘shield’, ie as a defence by the host State to escape responsibility in investment disputes, and as a ‘sword’, when Indigenous investors refer to relevant standards on Indigenous rights to argue preferential treatment. The UNDRIP positively contributes to all; especially through its codification of relevant Indigenous rights and by pushing for an Indigenous participation in investment proceedings, inter alia through amicus curiae briefs. Overall, the mentioned techniques should be drawn upon in a comprehensive approach so that they contribute in a mutually complementary way to give maximum respect to Indigenous rights.
References(p. 107) 6. The UNDRIP’s Aspiration: Improved Solutions to Deal with Investment Law and Indigenous Rights
Most of the above-mentioned solutions can be implemented on the basis of existing law/de lege lata. However, they are not necessarily sufficient to deal with the UNDRIP’s aspirations concerning Indigenous rights. Further, improved solutions are called for, especially by the Declaration’s far-reaching recognition of Indigenous peoples as distinct peoples and by the extensive codification of Indigenous land rights. Accordingly, the UNDRIP calls for de lege ferenda means to even further promote Indigenous rights in investment proceedings. These means relate to the relevant substantive law (such as explicit references to human/Indigenous rights in investment treaties or cultural exception clauses). They also include procedural means, such as a right to intervention of Indigenous peoples or mandatory ex ante human rights or cultural impact assessments. Still, some of these de lege ferenda solutions have to be handled with care. The objectives to best promote Indigenous rights, in line with the UNDRIP’s aspirations, have to be balanced against the primary aim of international investment arbitration, namely the timely resolution of investment disputes.
To incorporate explicit references to human or Indigenous rights in investment treaties are a first possibility for further consideration of Indigenous rights. For example, references to human rights in the preamble of an investment treaty may induce arbitrators to interpret the treaty in accordance with relevant human and Indigenous rights.110 Countries with significant numbers of Indigenous peoples might consider including explicit references to Indigenous rights, including to the UNDRIP, in the preamble of their BITs. But also more general references to relevant human rights in the preamble of an investment treaty should induce arbitrators to interpret an investment treaty with due account of Indigenous rights (the UNDRIP) when its guarantees interfere with Indigenous rights.
The incorporation of references to human or Indigenous rights is thus a potentially forceful tool. However, an investment treaty with a general reference to human (or even Indigenous) rights is still missing.111 The seemingly only document with explicit mention of human rights is the Norwegian Draft Model BIT.112 It has, however, not been adopted.
An even more effective means to further investors’ respect for human/Indigenous rights could be strong ‘in accordance with host State law-clauses’ with explicit reference to human/Indigenous rights, including to the UNDRIP.113 A fortiori, these clauses could require that investments have to be made ‘in accordance with host State law’ not only at the References(p. 108) time of admission, but during the entire duration of the investment.114 This would have the advantage that foreign investors, who (seriously) violate human/Indigenous rights throughout the duration of their investment, lose the protection under the investment treaty. At the same time, overly broad ‘in accordance with host State law-clauses’ pose the risk of abuse by host States. They thus have to be handled with care and, for instance, be restricted to compliance with domestic human and Indigenous rights law during the duration of the investment.
Especially the UNDRIP’s recognition of Indigenous peoples as culturally distinct peoples (see, eg, Article 3) calls for further-reaching de lege ferenda means to strengthen Indigenous rights, such as the incorporation of cultural/human rights exception clauses in investment treaties. Cultural exception clauses in investment treaties may be relied upon by the host State to protect sites of cultural value, including Indigenous cultural heritage.115 Such exceptions may also relate to affirmative action measures to remedy past injustices. Cultural (or similar) exception clauses in investment treaties enable host States to uphold their police powers to implement social policies—here, to protect Indigenous peoples—which accordingly should not constitute violations of the respective investment treaties. They thus imply, positively, that the host State retains its full regulatory powers for a specific situation and that it can adopt measures, for instance, to uphold Indigenous rights as required by the UNDRIP. At the same time, such carve-outs burden the investor with the economic consequences of the host State’s regulatory measures. Consequently, cultural (and similar) exception clauses have to be used with caution and should only be included with clearly defined criteria in investment treaties.
Certain investment treaties already incorporate exceptions of this kind. Malaysia excluded measures designed to promote the economic empowerment of the Bumiputras ethnic group from the scope of its BITs.116 Certain South African BITs provide for carve-outs for affirmative action programmes to remedy past injustices.117 A further-reaching—de lege ferenda—incorporation of similar clauses also in other investment treaties might, with the above caveat, thus be a means for States to pursue affirmative action programmes in support of Indigenous peoples and their traditional activities without running the danger of being accused of breaching, for example, the investment treaty’s national treatment or non-discrimination provisions. Cultural exceptions clauses could thus provide regulatory space for States to realize the UNDRIP’s aspirations.
References(p. 109) 6.3 A Right to Intervention of Indigenous Peoples?
The UNDRIP’s far-reaching recognition of Indigenous peoples as culturally distinct peoples may also require additional procedural rights, such as a right to intervention of Indigenous peoples in investment proceedings. Such additional rights account for the distinct cultural identity of Indigenous peoples whose interests, even if they are affected by the outcome of investment proceedings, are at risk of not being adequately represented by the host State of the investment.118 They are thus in line with the UNDRIP’s aspirations in terms of cultural distinctiveness and Indigenous self-determination.
In fact, some commentators have called for a right to intervention of Indigenous peoples in investment proceedings.119 Such right to intervention would include Indigenous peoples as parties to the proceedings, allowing them to submit briefs with no page limits, to attend and participate in oral hearings, and access to records.120 This would go further than amicus curiae submissions. Still—and notwithstanding the strong arguments in favour of a right to intervention from the perspective of Indigenous peoples—to incorporate such a far-reaching right to intervention in investment treaties seems undesirable.121 A right to intervention considerably burdens investment proceedings, including through the necessary identification of the third parties (here: the Indigenous peoples) affected by the outcome, the lengthening of proceedings, and a possible re-politization of the dispute. As convincingly argued by Vadi:
Admitting third parties, such a[s] indigenous persons, to act as parties in the proceeding would take judicialization too far, and as a matter of procedure, it would be undesirable. When states agree to a BIT, they accept investor-state arbitration as the dispute settlement mechanism to solve investment disputes with foreign nationals, not with other parties with varying interests.122
In short, a de lege ferenda right to intervention seems too far-reaching from an investment law perspective. Interactions between Indigenous rights and investment law—the UNDRIP’s de lege ferenda aspirations—should be accounted for differently.
A further means to live up to the UNDRIP’s aspirations are measures taken prior to the admission of an investment. To exemplify, Article 32(2) of the UNDRIP requires the free and informed consent of Indigenous peoples ‘prior to the approval of any project affecting their lands or territories and other resources’. This presupposes knowledge of the potential effects of an investment project for Indigenous peoples. A useful means to comply with this requirement and to give room to Indigenous concerns are ex ante human rights or cultural impact assessments.123 Both, human rights and cultural impact References(p. 110) assessments, follow a similar logic. They are a technical instrument to identify the effects of a proposed activity on human rights (or cultural values). They are also a means to avoid or mitigate these effects. To include mandatory cultural or human rights impact assessments as admission criteria for an investment in investment treaties should thus further the protection of Indigenous rights. So far, investment treaties do not seem to require such impact assessments. Still, some domestic systems provide for them.124
De lege ferenda, it could be useful to incorporate mandatory human rights or cultural impact assessments in investment treaties, especially for large-scale investment projects with potentially severe effects for the affected local communities. Impact assessments may be an important de lege ferenda tool to avoid or mitigate the possibly negative consequences of an investment project for Indigenous peoples before they occur. They are thus a building block for the UNDRIP’s aspirations.
Numerous de lege ferenda options exist to improve the incorporation of Indigenous concerns in investment proceedings, in line with the UNDRIP’s aspirations. They concern the applicable substantive law—ie the incorporation of references to human/Indigenous rights or cultural exception clauses in investment treaties—as well as procedural means, such as a right to intervention of Indigenous peoples or mandatory ex ante human rights or cultural impact assessments. Some of these options, such as references to human and Indigenous rights in investment treaties, appear as reasonable and necessary means to further promote the Indigenous cause, in line with the UNDRIP’s aspirations. Others, conversely, such as a right to intervention of Indigenous peoples, go too far and may put at risk the effectiveness of investment dispute settlement. Thus, a careful weighing of arguments in favour and against should precede any incorporation of additional means to enhance the promotion of Indigenous rights in investment proceedings.
The UNDRIP’s interactions with international investment law raise complex issues. They stem from the particular identity of Indigenous peoples as culturally distinct peoples with a specific attachment to their lands. What is more, Indigenous peoples usually live as minorities in nation-States and are not necessarily represented by the government of that State (ie the host State) in investment proceedings.
The UNDRIP’s contribution to the state of law increases the potential for conflicts between Indigenous rights and those of foreign investors. This is reflected in the jurisprudence of human rights monitoring institutions. Especially the far-reaching recognition of Indigenous rights by the Inter-American Court of Human Rights—inter alia with reference to the UNDRIP—illustrates the potential of clashes between Indigenous and foreign investors’ rights. It also shows the need to address interactions and conflicts between Indigenous rights and investment law.
So far, Indigenous concerns have found very little reflection in investment proceedings. In merely a handful of cases were Indigenous peoples’ rights—and the UNDRIP—referred (p. 111) to in the parties’ memorials or in amicus curiae submissions. Explicit references of investment tribunals are even rarer. Only the Grand River tribunal seems to have pronounced itself more extensively on Indigenous rights, with explicit reference to the UNDRIP. At the same time, the growing likelihood of interactions between Indigenous rights and investment law entails an obvious need for coordination between both systems. Also, the UNDRIP calls for a further-reaching acknowledgement of Indigenous concerns in investment proceedings.
International (investment) law provides for various techniques to deal with Indigenous rights in investment proceedings, to coordinate and address conflicts between the systems. Possibilities comprise a tribunal’s jurisdiction and the applicable law, which includes international law in general and, consequently, rules protecting Indigenous peoples, methods of treaty interpretation (Article 31(3)(c) of the VCLT), and procedural means such as amicus curiae submissions. Still, arbitrators seem to make surprisingly little use of these techniques. Thus, more is needed de lege ferenda to comply with the UNDRIP’s aspirations, such as explicit references to human (Indigenous) rights in investment treaties or the incorporation of human rights or cultural exception clauses in these treaties. Overall, as shown in the Grand River case, the personal expertise of individual arbitrators is among the most important factors to give due recognition to Indigenous concerns. In the end, to reach a truly holistic approach to the interactions between investment law and the rights of Indigenous peoples in line with the UNDRIP’s aspirations, a combination of these tools should increasingly be resorted to.References(p. 112)
* This contribution is based on my article ‘Investment, Development and Indigenous Peoples’ in R Hoffmann, SW Schill, and CJ Tams (eds), Investment Law and Development: Bridging the Gap (Edward Elgar 2015) 423–51. The author wishes to thank Marija Dobric for valuable research assistance.
1 UNCTAD, ‘World Investment Report 2016—Investor Nationality: Policy Challenges’ (2016), <http://unctad.org/en/PublicationsLibrary/wir2016_en.pdf> accessed 11 October 2017.
2 On the investment and human rights debate, see generally U Kriebaum, ‘Human Rights of the Population of the Host State in International Investment Arbitration’ (2009) 10 JWIT 653; B Simma and T Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology’ in C Binder, U Kriebaum, A Reinisch, and S Wittich (eds), International Investment Law for the 21st Century (Oxford University Press 2009) 678; U Kriebaum, ‘Foreign Investments and Human Rights: The Actors and Their Different Roles’ in NJ Calamita, D Earnest, and M Burgstaller (eds), Current Issues in Investment Treaty Law, vol IV: The Future of ICSID and the Place of Investment Treaties in International Law (BIICL 2013) 45; P-M Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in P-M Dupuy, F Francioni, and E-U Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009) 45; U Kriebaum, ‘Privatizing Human Rights: The Interface between Investment Protection and Human Rights’ in A Reinisch and U Kriebaum (eds), The Law of International Relations: Liber Amicorum Hanspeter Neuhold (Eleven International 2007) 165; E de Brabandere, ‘Human Rights Considerations in International Investment Arbitration’ in M Fitzmaurice and P Merkouris (eds), The Interpretation and Application of the European Convention on Human Rights (Martinus Nijhoff 2013) 183.
4 See Section 4 for details.
6 See, for further reference, International Law Association (ILA), Committee on the Rights of Indigenous Peoples, ‘The Hague Conference: Interim Report’ (2010) 22–23, <http://www.ila-hq.org/en/committees/index.cfm/cid/1024> accessed 18 November 2016. When lands were alienated from Indigenous peoples without their consent, Indigenous peoples’ right to redress can include restitution, or, when this is not possible, just and fair and equitable compensation (UNDRIP Art 28).
7 ILA, Committee on the Rights of Indigenous Peoples, ‘The Sofia Conference: Final Report’ (2012) 30, para 8, <http://www.ila-hq.org/en/committees/index.cfm/cid/1024> accessed 18 November 2016.
8 Note that the Colombian Constitutional Court, for instance, has elaborated on the question of whether the requirement of free and informed consent amounted to a veto power of Indigenous communities against investment projects. Without clarifying whether or not there is a right to veto, the Court pointed out ‘that the whole discussion is not raised in terms of who vetoes whom but it is about having room for discourse among equals in the midst of differences, opportunity for state agencies and concessionaires to explain concretely and transparently what purposes their projects have while the community itself sets out its needs and points of views’ (unofficial translation); see Constitutional Court of Colombia, Sentencia T-129/11 (2011) 74.
9 See wording of UNDRIP Arts 19, 32(2). See in this sense also Sofia Conference (n 7) 4.
10 UNDRIP Art 10: ‘Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned …’.
11 UNDRIP Art 29(2): ‘States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.’
12 See also Sofia Conference (n 7) 30, para 5: ‘States must comply with the obligation—consistent with customary and, where applicable, conventional international law—to recognize, respect, protect, fulfil and promote the right of indigenous peoples to self-determination …’.
13 See in this sense (including supporting references), Sofia Conference (n 7) 23ff, 30, para 6. See particularly ibid 30, para 8: ‘States must comply—pursuant to customary and, where applicable, conventional international law—with the obligation to recognize, respect, safeguard, promote and fulfil the rights of indigenous peoples to their traditional lands, territories and resources, which include the right to restitution of the ancestral lands, territories and resources of which they have been deprived in the past. Indigenous peoples’ land rights must be secured to the extent that is necessary to preserve the spiritual relationship of the community concerned with its ancestral lands, which is an essential prerequisite to allow such a community to retain its cultural identity, practices, customs and institutions.’ See Hague Conference (n 6) 22–3. See generally, Sofia Conference (n 7) 29: ‘The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a whole cannot yet be considered as a statement of existing customary international law. It, however, includes key provisions which correspond to existing State obligations under customary international law’; see also Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment, IACtHR Series C No 79 (31 August 2001) para 140(d).
15 See in this sense Sofia Conference (n 7) 29 (footnotes omitted): ‘The provisions included in the UNDRIP which do not yet correspond to customary international law nevertheless express the aspirations of the world’s indigenous peoples as well as of States in their move to improve existing standards for the safeguarding of indigenous peoples’ human rights. Their recognition by States in a Declaration subsumed “within the framework of the obligations established by the Charter of the United Nations to promote and protect human rights on a nondiscriminatory basis” and passed with overwhelming support by the UN General Assembly leads to an expectation of maximum compliance by States and the other relevant actors …’.
16 What is more, as will be shown in Section 5.3, the UNDRIP’s recognition of Indigenous peoples’ right to self-determination—and related rights, including their right to participate in decisions which affect them—may be taken as an argument to enhance Indigenous peoples’ procedural rights in investment proceedings.
17 For the jurisprudence of the European Court of Human Rights and the European Commission on Human Rights, see T Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ in Fitzmaurice and Merkouris (n 2) 217.
18 Awas Tingni (n 13).
19 Indigenous Community Yakye Axa v Paraguay, Judgment, IACtHR Series C No 125 (17 June 2005) paras 148, 217–18; Sawhoyamaxa Indigenous Community v Paraguay, Judgment, IACtHR Series C No 146 (29 March 2006) paras 135–41, 210–14.
21 See esp Kichwa Indigenous People of Sarayaku v Ecuador, Judgment, IACtHR Series C No 245 (27 June 2012) paras 177, 220. The case concerns a dispute which was also dealt with by an investment tribunal: Burlington v Ecuador; see Burlington Resources Inc v Ecuador, Decision on Jurisdiction, ICSID Case No ARB/08/5 (2 June 2010); and Burlington Resources Inc v Ecuador, ICSID Case No ARB/08/5, Decision on Liability (14 December 2012); see Section 4 for details.
23 See The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples’ Rights, Comm No 155/96 (2001) esp paras 55ff, <http://www1.umn.edu/humanrts/africa/comcases/155-96.html> accessed 11 October 2017; F Lenzerini, ‘Foreign Investment in the Energy Sector and Indigenous Peoples’ Rights’ in E de Brabandere and T Gazzini (eds), Foreign Investment in the Energy Sector: Balancing Private and Public Interests (Martinus Nijhoff 2014) 192, 212.
25 Saramaka People (n 20) para 131.
26 The Inter-American Court of Human Rights stated: ‘The Court observes that, in explaining the position of the State in favor of this text, the representative of Suriname is reported to have specifically alluded to the aforementioned text of Article 32 of such instrument. The UN Press Release states the following: “[The representative of Suriname] said his Government accepted the fact that the States should seek prior consultation to prevent a disregard for human rights. The level of such consultations depended on the specific circumstances. Consultation should not be viewed as an end in itself, but should serve the purpose of respecting the interest of those who used the land”, …’ (ibid para 131 fn 131).
27 ibid paras 129, 131. Footnotes omitted. See also the recent Case of the Kaliña and Lokono Peoples v Suriname, Judgment, IACtHR Series C No 309 (25 November 2015) para 201 fn 238, where the Inter-American Court cited Saramaka People (n 20) para 129 in its elaboration on Suriname’s alleged failed compliance with the ‘three guarantees’.
28 Sarayaku (n 21).
29 ibid para 160. Footnote references inter alia to UNDRIP Arts 19, 30(2), 32(2), 38 (ibid fn 178). See furthermore Sarayaku (n 21) para 167: ‘Given that the State must guarantee the rights to consultation and participation in all phases of planning and implementation of a project that may affect the territory on which an indigenous or tribal community is settled, or other rights essential to their survival, these processes of dialogue and consensus-building should take place from the first stages of planning or preparation of the proposed measures, so that the indigenous peoples can truly participate in and influence the decision-making process, in accordance with the relevant international standards. To that effect, the State must ensure that the rights of indigenous peoples are not disregarded in any other activity or agreement reached with private or third parties, or in the context of public sector decisions that would affect their rights and interests. Therefore, where applicable, the State must also carry out the tasks of inspection and supervision of their application and, when appropriate, deploy effective means to safeguard those rights through the corresponding judicial organs’ (ibid para 167; footnote references, inter alia, to UNDRIP Arts 15(2), 17(2), 19, 30(2), 32(2), 36(2) (ibid fn 218)). See also ibid para 185 fn 242. See also Kaliña and Lokono Peoples (n 27) paras 205–07. Para 206: ‘In this regard, the Court has already established that the State must ensure the effective participation “with regard to any development, investment, exploration or extraction plan.” In particular, the Court referred to development and investment plans as “any activity that may affect the integrity of the lands and natural resources … in particular, any proposal related to logging or mining concessions.” ’ Footnotes omitted.
30 Sarayaku (n 21) para 215. Footnote references, inter alia, to UNDRIP Arts 8 and 13 (ibid fn 283).
32 See generally Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 657. The risk of conflicts is acute, since Indigenous territories are partly still undefined for lack of demarcation of Indigenous ancestral lands.
33 See Section 4 for the respective investment cases.
34 As was rightly pointed out by Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 656: ‘The obligations incumbent upon the State under human rights treaties will not normally lead to a conflict in a strict sense with investment protection standards. Human rights treaties do not impose a duty on States to expropriate without compensation or to treat investors in an unfair or inequitable or discriminatory manner …’.
35 See generally Lenzerini (n 23) 199ff. See also Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, ‘Impacts of International Investment Agreements on the Rights of Indigenous Peoples’, UN Doc A/HRC/33/42 (11 August 2016) paras 26–69 for further details.
37 Glamis, Non-Party Supplemental Submission by the Quechan Indian Nation; see Section 5.4 for details.
38 Glamis (n 36) para 536.
39 ibid paras 598–830. This, as held by Kriebaum and Schreuer, in application of a particularly high threshold for the standard; see C Schreuer and U Kriebaum, ‘From Individual to Community Interest in International Investment Law’ in U Fastenrath, R Geiger, D-E Khan, and others (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1079, 1086.
40 Chevron Corp and Texaco Petroleum Corp v Ecuador, PCA Case No 2009-23, pending, <http://www.pcacases.com/web/view/49> accessed 11 October 2017.
41 Maria Aguinda and Others v Chevron Texaco Corp, Proceeding No 002-2003, Supreme Court of Justice, Nueva Loja, Ecuador. The dispute was called ‘Lago Agrio Litigation’ because the Ecuadorian court was situated in the town of Lago Agrio. In January 2012, the judgment was upheld by the Ecuadorian Court of Appeals; see CNN Wire Staff, ‘Ecuador Court Upholds US$8.6 Billion Ruling against Chevron’, CNN (4 January 2012), <http://edition.cnn.com/2012/01/04/world/americas/ecuador-chevron-lawsuit/index.html> accessed 11 October 2017, with according efforts to enforce the judgment in Argentina, Brazil, Canada, and the United States; see B Reddall, ‘Tribunal Presses Ecuador to Halt Chevron Case Enforcement’, Reuters (8 February 2013), <http://www.reuters.com/article/2013/02/09/chevron-ecuador-idUSL1N0B8FBB20130209> accessed 11 October 2016; see Lenzerini (n 23) 208 for details.
42 Chevron and Texaco Petroleum v Ecuador (n 40) paras 456ff.
45 Burlington (Decision on Jurisdiction) (n 21) para 342.
46 ibid para 315. Note, however, that the tribunal decided on the merits of Burlington’s expropriation claim and found Ecuador in breach of its obligations: see Burlington (Decision on Liability) (n 21) para 546. This, nonetheless, without touching upon Indigenous rights.
48 See ibid. Investor’s Memorial (1 March 2010) para 8, <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/gallo.aspx?lang=eng> accessed 12 October 2017.
49 See ibid, Government of Canada Counter-Memorial (29 June 2010) para 137, <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/gallo.aspx?lang=eng> accessed 12 October 2017.
50 Gallo (n 47) para 341.
51 Pac Rim Cayman LLC (OceanaGold) v El Salvador, ICSID Case No ARB/09/12, Award (14 October 2016) paras 6.1ff; see also J Hofbauer, ‘Foreign Investments Meet Free, Prior and Informed Consent (FPIC): Whose Sovereignty?’(2013) 18 Austrian Rev Int’l & European L 1, 25–26 for further details.
52 Such a human rights obligation is, for instance, the right to property or land. See Pac Rim (n 51) paras 3.28–3.30, 10.4–10.6. See also ibid, Center for International Environmental Law (CIEL), Submission of Amicus Curiae Brief on the Merits of the Dispute (25 July 2014) 12.
54 Bolivia argued that the company’s project violated several UNDRIP provisions. Report of the Special Rapporteur (n 35) para 47; South American Silver, Respondent Counter-Memorial, 31 March 2015, paras 302–26. See especially the reference which was made to the Hague Conference (n 6) 43 in para 302 fn 436: ‘After a careful study on international law, the International Law Association recognized that respect for certain indigenous peoples’ fundamental rights is a part of customary international law, ie “self-determination, autonomy or self-government, cultural rights and identity, land rights as well as reparation, redress and remedies [which] are all strictly interrelated with each other as building blocks of the unique Circle of Life representing the heart of Indigenous peoples’ identity, to the extent that ‘the change of one of its elements affects the whole’ ” …’. The claimant (SAS) conversely considered that the UNDRIP was neither binding nor customary in nature. Report of the Special Rapporteur (n 35) paras 48–49; South American Silver, Claimant’s Reply to Respondent’s Counter-Memorial on the Merits and Response to Respondent’s Objections to Jurisdiction and Admissibility (30 November 2015) paras 247ff.
55 Bear Creek Mining Corp v Peru, ICSID Case No ARB/14/2, pending, <https://www.italaw.com/cases/2848> accessed 27 November 2016; for further details see ‘Bear Creek Announces Its Intent to Commence an Arbitration Against Peru—Santa Ana Dispute’ (12 August 2014), <https://www.italaw.com/cases/2848> accessed 27 November 2016; and UNCTAD Investment Policy Hub, ‘Bear Creek Mining v. Peru’, <http://investmentpolicyhub.unctad.org/ISDS/Details/589> accessed 12 October 2017.
56 Report of the Special Rapporteur (n 35) para 50; see also Bear Creek, Non-disputing party written submission of DHUMA and Dr Carlos López (9 May 2016) 8f: ‘The protest movement started at the beginning of March. The Aymara population demanded the repeal of Supreme Decree 083-2007 which had approved the Santa Ana mining project, the application and respect for the right of prior consultation, the suspension of all mining concessions in the southern area of Puno and especially of those that directly affected Apu Khapia …’.
57 Note, however, that although Peru did not elaborate on the UNDRIP, it referred to ILO Convention 169 in its counter-memorial to argue the international obligation to obtain prior consent. See Bear Creek, Respondent’s Counter-Memorial on the Merits and Memorial on Jurisdiction (6 October 2015) para 62.
58 The non-disputing parties argued that the claimant had failed to respect the Indigenous rights recognized in the UNDRIP and, more specifically, that they had not obtained prior consent: see Bear Creek (Submission of DHUMA and Dr Carlos López) (n 56) 15, 17. Canada’s amicus curiae submission does not refer to the UNDRIP, conversely. Bear Creek, Non-disputing State Party submission of the Government of Canada (9 June 2016).
59 See also the procedural order in the Joint ICSID Cases, Bernhard von Pezold and Others v Zimbabwe, ICSID Case No ARB/10/15, Award (28 July 2015); Border Timbers Ltd, Border Timbers International (Private) Ltd and Hangani Development Co (Private) Ltd v Zimbabwe, ICSID Case No ARB/10/25, Procedural Order No 2 (26 June 2012), where the arbitral tribunal denied an amicus petition submitted jointly by four Indigenous communities from Zimbabwe and a European NGO. The Indigenous amicus petitioners had argued that land at stake in the investment dispute was part of their ancestral territory and that they thus had a significant interest in the outcome of the investment proceedings. For further reference and a critical view on the investment tribunal’s denial to admit the amicus petition, see C Schliemann, ‘Requirements for Amicus Curiae Participation in International Investment Arbitration: A Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15’ (2013) 12 Law & Practice Int’l Courts & Tribunals 365.
61 Grand River Enterprises Six Nations Ltd and Others v United States, UNCITRAL, Award (12 January 2011); see for details C Binder, ‘Investment Law and Indigenous Peoples: The Grand River Case’ (2013) 2 Rivista dell’Arbitrato 487.
62 Also more generally, investors rarely argue a violation of their human rights as investors; see Schreuer and Kriebaum (n 39) 1089 for further reference.
63 Grand River (n 61) para 128.
65 Grand River (n 61) paras 141ff.
66 ibid paras 152–53.
67 ibid para 210. What is more, the Grand River tribunal criticized, inter alia, the lacking involvement of First Nations and tribal governments in the development of the proposed amendments to the Master Settlement Agreement (MSA) (para 185), as well as the missing sensitivity of the US States vis-à-vis the Claimants’/the Indigenous nations’ interests (para 186). The tribunal also more generally referred to the growing protection of Indigenous rights (para 186). While the tribunal maintained that such obligation to consult with Indigenous peoples was not to be equalled with an obligation to consult with individual investors (para 211), it held that consultations should have occurred with the First Nations whose members could and were being affected by the MSA and related measures (para 212). Put differently, the tribunal ‘operationalized’ the obligation to consult with Indigenous peoples by applying it to the case before it.
68 See in this sense also Section 3 for the jurisprudence of human rights monitoring institutions. Having been found in violation of their rights under international human rights instruments, States may be induced to ‘correct’ situations by interfering with the rights of foreign investors as protected under investment agreements.
69 Bolivia seems to be the only respondent State in an investment proceeding which referred to the UNDRIP in its counter-memorial: see South American Silver (Respondent Counter-Memorial) (n 54). Note also, however, that Ecuador’s counter-memorials in Burlington (n 21) and Chevron (n 41) are not publicly available; and that the United States’ counter-memorial and the United States’ Rejoinder in Glamis were submitted before the UNDRIP’s adoption (Glamis, Counter-Memorial of Respondent United States of America (19 September 2006), <http://www.state.gov/s/l/c10986.htm> accessed 12 October 2017; Glamis, Rejoinder of Respondent United States of America (15 March 2007), <http://www.state.gov/s/l/c10986.htm> accessed 12 October 2017). Canada did not refer to the UNDRIP in its Counter-Memorial (n 49) in Gallo.
70 Note, however, that amicus curiae submissions referred to the UNDRIP; for details, see Section 5.3.
72 For general references on the investment law and human rights debate, see n 2.
73 See Schreuer and Kriebaum (n 39) 1096: ‘… arbitrators are prone to reacting to the parties’ submissions who will invoke community interests [including human rights] only when it serves their particular interests. It would be untypical for a tribunal to investigate and promote community interests on its own initiative.’ See also Section 4.3.
74 See Section 2.
75 Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 661.
77 Conversely, narrow jurisdictional clauses—restricting jurisdiction on violations of the investment treaty—will thus leave very little room to refer to Indigenous rights; see, eg, Art 9 of the Netherlands–El Salvador BIT as an example of a narrow jurisdictional clause: ‘… disputes which arise within the scope of this agreement between one Contracting Party and an investor of the other Contracting Party concerning an investment of that investor in the territory of the other Contracting Party …’.
78 See for a general discussion on jurisdiction and applicable law, Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 660ff.
79 See, eg, Netherlands–Argentina BIT Art 10(7); see also ICSID Convention Art 42(1), which states that if there is no agreed choice of law, ‘the Tribunal shall apply the law of the Contracting State Party to the dispute and such rules of international law as may be applicable’; see Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 661 for further references.
80 This seems especially important given the growing domestic recognition of Indigenous rights especially in Latin American countries. See, eg, the constitutions of Brazil, Bolivia, Colombia, Ecuador, Nicaragua, Paraguay, and Venezuela. For further reference, see Hague Conference (n 6) 23.
81 See T Gazzini and Y Radi, ‘Foreign Investment with a Human Face—with Special Reference to Rights of Indigenous Peoples’ in R Hofmann and CJ Tams (eds), International Investment Law and Its Others (Nomos 2012) 87, 95.
84 See, eg, Germany–Philippines BIT Art 1(1); Spain–Mexico BIT Art 1(4); see Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 664 for further reference.
85 The ICSID tribunal in Plama Consortium Ltd v Bulgaria observed that: ‘Unlike a number of Bilateral Investment Treaties, the ECT [Energy Charter Treaty] does not contain a provision requiring the conformity of the Investment with the particular law. This does not mean, however, that the protections provided for by the ECT cover all kinds of investments, including those contrary to domestic or international law’ (Plama Consortium Ltd v Bulgaria, ICSID Case No ARB/03/24, Award (27 August 2008) para 138). As was generally affirmed by the ICSID tribunal in Phoenix Action v Czech Republic in an obiter dictum: ‘To take an extreme example, nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments in pursuance of torture or genocide or in support of slavery or trafficking of human organs’ (Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5, Award (15 April 2009) para 78). See generally Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 665.
86 An exception to the contrary is the China–Malta BIT, which requires investments to be continuously in accordance with host State law. Article 2(2) of the China–Malta BIT (2009) states: ‘Investments of either contracting Party shall be made, and shall, for their whole duration, continuously be in line with the respective domestic laws.’ Such wording would thus allow for an even broader consideration of Indigenous rights, thus encompassing even subsequent legal changes; see generally U Kriebaum, ‘The State’s Duty to Protect Human Rights: Investment and Human Rights’, 8, <http://deicl.univie.ac.at/fileadmin/user_upload/i_deicl/VR/VR_Personal/Kriebaum/Publikationen/states_duty_protect_human_rights.pdf> accessed 2 February 2018.
87 When contracts between investor and host State include stabilization clauses, such subsequent legislative changes seem even more difficult. On stabilization clauses and human rights, see A Shemberg, ‘Stabilization Clauses and Human Rights: A Research Project Conducted for IFC and the United Nations Special Representative of the Secretary-General on Business and Human Rights’ (27 May 2009), <http://www.ifc.org/wps/wcm/connect/9feb5b00488555eab8c4fa6a6515bb18/Stabilization%2BPaper.pdf?MOD=AJPERES> accessed 2 February 2018.
89 VCLT Art 31(3)(c); as to the relevance of the principle of systemic integration, see, eg, Simma and Kill (n 2); see also the reference to VCLT Art 31(3)(c) in the ILC Fragmentation Report; Study Group of the International Law Commission (Finalized by M. Koskenniemi), ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc A/CN.4/L.682 (2006) para 423; R Gardiner, Treaty Interpretation (Oxford University Press 2015) 299; C McLachlan, ‘The Principle of Systemic Integration and Article 31(1)(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 280.
90 See Section 4.
91 See Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 668 as regards human rights. In fact, the treaty text is the starting and—usually—end point of any interpretation: ‘in claris cessat interpretatio’ (‘interpretation stops in the face of clarity’). It is the task of an international tribunal to interpret, not to replace a treaty provision. In the words of the arbitral tribunal in the Laguna del Desierto case, interpretation is ‘a judicial function, whose purpose is to determine the precise meaning of a provision, but which cannot change it’. Dispute concerning the Course of the Frontier between BP 62 and Mount Fitzroy ‘Laguna del Desierto’ (Argentina v Chile) (1994) 113 ILR 1, 45, para 75.
92 Note, however, that in the South American Silver case, the respondent State Bolivia argued in its counter-memorial for a systematic interpretation of the UK–Bolivia BIT; see South American Silver (Respondent Counter-Memorial) (n 54) paras 193ff. See esp para 199: ‘Under a systemic interpretation of international law, the Arbitral Tribunal shall resort to the sources of law which protect the rights of the Indigenous Communities when ginving [sic] content to certain concepts that are constantly evolving such as fair and equitable treatment, full protection and security, arbitrariness and the legality or illegality of an expropriation’ (footnotes omitted). Again, it remains to be seen how the tribunal will deal with the respondent’s submission.
93 See VCLT Art 31(1)’s reference to the object and purpose of a treaty for treaty interpretation; see also Section 6.2.
94 See Section 5.5 for details.
95 See, however, South American Silver (Respondent Counter-Memorial) (n 54). Note respectively that also proportionality reasoning may be used as a conflict-solving technique and cross-regime harmonization between investment law and Indigenous rights. See, eg, SW Schill, ‘Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights’ (2012) 27 ICSID Rev 87, for further reference.
96 As to an increased reference to Indigenous rights, inter alia through a right to intervention, see Section 6.3.
97 See Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 658 fn 21 for relevant case law on amicus curiae petitions by civil rights groups and human rights NGOs.
98 See Australia–Chile FTA Art 10(20) (Conduct of Arbitration): ‘… 2. The tribunal shall have the authority to accept and consider amicus curiae written submissions that may assist the tribunal in evaluating the submissions and arguments of the disputing parties from a person or entity that is not a disputing party …’.
99 See Rule 37 of the ICSID Rules as amended 2006. While the ICSID tribunal in Pac Rim admitted the amicus curiae submission by the CIEL under ICSID Arbitration Rule 37(2), it refused to deal with its arguments in the award; see Pac Rim (n 51) paras 3.28–3.30.
100 See, however, the arbitral tribunal’s denial to admit the amicus curiae petition in von Pezold and Border Timbers (n 59). See n 59 for further reference. Recently, also the amicus curiae brief submitted by the Columbia Centre on Sustainable Investment (CCSI) in the pending Bear Creek arbitration (n 56) was denied. See, however, n 58 on the admitted amici curiae briefs. Among other things, CCSI drew on UNDRIP Arts 19 and 32(2) to argue that Peru was bound by the international human rights law obligation ‘to respect and protect the rights of indigenous peoples to prior consultation and to give or withhold their free, prior and informed consent (FPIC)’; see Bear Creek, Submission as an ‘other person’ pursuant to Art 836 and Annex 836(1) of the Peru–Canada FTA, 9 June 2016, 2–3 and fn 7. In its Procedural Order No 6, the tribunal rejected CCSI’s amicus curiae submission by merely stating that the brief would not contribute to the legal issue and the tribunal’s fact-finding. However, it did not deal with Bear Creek’s argument that the brief should be denied on the ground that the tribunal lacked jurisdiction to deal with human rights issues; see Bear Creek, Procedural Order No 6 (21 July 2016) paras 22, 38–29. Para 22: ‘… the CCSI Submission addresses matters that are beyond the scope of the arbitration. This case does not relate to the rights of the Aymara communities. Neither side has put at issue the rights of the Aymara communities and neither side has disputed the existence of or alleged the violation of international human rights law. Rather, this dispute concerns the enactment of Supreme Decree 032. This arbitration is an inappropriate forum for the interpretation and application of international human rights treaties, which is beyond the Tribunal’s jurisdiction.’
101 See, eg, Glamis (Submission by the Quechan Indian Nation) (n 37) 1, which maintained: ‘… the preservation and protection of indigenous rights in ancestral land is an obligation of customary international law which must be observed, by both the NAFTA Parties and any treaty interpreter, in accordance with the principle of good faith; and that an investor seeking compensation for an alleged taking of property cannot rely upon a claim to acquired rights in which no legitimate expectation to enjoy such rights existed.’ The submission referred to UNDRIP Arts 11, 12, 25, 26 (ibid 2, 4, 6).
102 IISD, ‘Amicus Curiae Fundación Pachamama and the International Institute for Sustainable Development (IISD)—Chevron v. Ecuador’ (5 November 2010) para 1.4, <http://www.iisd.org/sites/default/files/publications/submission_amici_pachamama_chevron.pdf> accessed 12 October 2017. The amicus curiae brief referred to the UNDRIP, eg, in para 4.9.
103 Office of the National Chief of the Assembly of Canadian First Nations, ‘Amicus Curiae Submission’ (19 January 2009), <http://www.state.gov/documents/organization/117812.pdf> accessed 12 October 2017. The submission stated, for instance, that ‘[t]he Assembly of First Nations supports the United Nations Declaration on the Rights of Indigenous Peoples and the customary international law principles it reflects’ (ibid 2). It concluded by affirming that ‘[w]hile it is truly unfortunate that neither government [of the United States of America and Canada] has so far indicated a willingness to sign the United Nations Declaration on the Rights of Indigenous Peoples, such intransigence cannot mean that their officials should be free to ignore the basic principles of international law reflected in it’ (ibid 4).
104 The reasons for the limited impact are various. Some cases are declared inadmissible (see Burlington (Decision on Jurisdiction) (n 21) and Gallo (n 47)). In Glamis (n 36), conversely, considerations of Indigenous peoples’ rights do not seem to have played any role for the tribunals’ deliberations. In Grand River (n 61), the amicus submission overwhelmingly reiterated and supported the claimants’ arguments already put forward in the memorial and was thus of somehow limited relevance; see generally Section 4.
105 See Vadi (n 82) 878.
106 2014 UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, <http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf> accessed 12 October 2017. For a model example as regards transparency, see Australia–Chile FTA Art 10(22) (Transparency of Arbitral Proceedings): ‘1. Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, make them available to the public at their cost: a. the notice of intent … b. the notice of arbitration … c. pleadings, memorials and briefs submitted to the tribunal by a disputing party and any written submissions … d. minutes or transcripts of hearings of the tribunal, where available; and e. orders, awards, and decisions of the tribunal. 2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as confidential business information or information that is privileged or otherwise protected from disclosure under a Party’s law in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure including closing the hearing for the duration of any discussion of confidential information.’ See similar provisions in the 2007 Norwegian Draft Model BIT Art 29, the 2012 US Model BIT Art 29, and the Canadian Model Foreign Investment Protection and Promotion Agreement 2004 Art 38; see generally Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 659.
107 In this sense, see Kriebaum, ‘Human Rights of the Population of the Host State’ (n 2) 659.
108 See Schreuer and Kriebaum (n 39) 1096: ‘A restraining factor in the consideration of community interests is the origin of investment arbitration in commercial arbitration. Not infrequently tribunals are focused on the settlement of the particular dispute without regard of the wider repercussions of their decisions …’.
109 See, eg, Grand River (n 61) para 210: ‘It may well be, as the Claimants urged, that there does exist a principle of customary international law requiring governmental authorities to consult indigenous peoples on governmental policies or actions significantly affecting them. One member of the Tribunal has written that there is such a customary rule.’
110 See Section 5.2.
111 Certain BITs refer to labour rights or the protection of health and safety in their preamble; see, eg, the US–Albania BIT, the US–Argentina BIT, the US–Armenia BIT, the US–Azerbaijan BIT, the US–Bolivia BIT, the US–Ecuador BIT, and the US–Estonia BIT; see generally Kriebaum (n 86) 8.
112 The Norwegian Model BIT contains a commitment to human rights as set out in the UN Charter and the Universal Declaration of Human Rights in its Preamble: ‘Reaffirming their commitment to democracy, the rule of law, human rights and fundamental freedoms in accordance with their obligations under international law, including the principles set out in the United Nations Charter and the Universal Declaration of Human Rights …’; see <https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf> accessed 12 October 2017.
113 See Kriebaum (n 86) 5–8, 21.
114 See China–Malta BIT 2009 Art 2(2) (n 86), which, however, does not contain an explicit reference to human rights.
115 Generally on cultural exceptions, see Vadi (n 82) 868ff.
116 See H Mann (International Institute for Sustainable Development), ‘International Investment Agreements, Business and Human Rights: Key Issues and Opportunities’ (February 2008), <http://www.iisd.org/pdf/2008/iia_business_human_rights.pdf> accessed 12 October 2017.
117 See, eg, Art 3(4)(c) of the Agreement between the Government of the Republic of Mauritius and the Government of the Republic of South Africa for the Promotion and Reciprocal Protection of Investments (1998), <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1991> accessed 12 October 2017; Art 3(3)(c) of the Agreement between the Czech Republic and the Republic of South Africa for the Promotion and Reciprocal Protection of Investments (1998, entered into force 17 September 1999), <http://investmentpolicyhub.unctad.org/Download/TreatyFile/982> accessed 27 November 2016; see Schreuer and Kriebaum (n 39) 1093 for further reference.
118 See generally P Wieland, ‘Why the Amicus Curia Institution Is Ill-Suited to Address Indigenous Peoples’ Rights before Investor-State Arbitration Tribunals: Glamis Gold and the Right of Intervention’ (2011) 3(2) Trade Law & Development 334.
119 See ibid 360ff for further reference.
120 ibid 366. Thus, a right to intervention, in principle, extends Indigenous peoples’ procedural rights.
121 See Vadi (n 82) 886.
123 On human rights impact assessments, see, eg, F Baxewanos and W Raza, ‘Human Rights Impact Assessments as a New Tool for Development Policy?’ (2013) ÖFSE Working Paper 37, <http://www.oefse.at/fileadmin/content/Downloads/Publikationen/Workingpaper/WP37_Human_Rights.pdf> accessed 12 October 2017; J Harrison, ‘Measuring Human Rights: Reflections on the Practice of Human Rights Impact Assessment and Lessons for the Future’ (2010) Legal Studies Research Paper No 2010-26, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1706742#> accessed 12 October 2017; see Vadi (n 82) 797 for further reference on cultural impact assessments.
124 For instance, in New Zealand, cultural impact assessments are conducted with regard to activities that may affect Māori cultural values and heritage; see Vadi (n 82) 874.