International Investment and Indigenous Peoples' Environment: A Survey of ISDS Cases from 2000 to 2020.

Chao Wang,Xiaohan Zhang,Jing Ning

doi:10.3390/ijerph18157798

Abstract

Indigenous peoples’ environments can be easily disrupted by foreign investments, and disputes have occasionally occurred over the past few years. The objective of this research article is to examine if current international investment law, especially its investor-state dispute settlement (ISDS) mechanism, could provide necessary protection to Indigenous rights. We searched all publicly available ISDS cases from 2000 to 2020, and selected 10 typical ones for comprehensive case study by using various research methods such as doctrinal legal research and comparative analysis. Our research revealed that Indigenous peoples’ participation in the ISDS proceedings is legally restrained, time-consuming, and rarely favorably decided by the arbitral tribunals. Responsibility for such undesirable outcomes rests with all stakeholders involved in the process, while the consequences of post-arbitration tend to be “triple losing”. These findings highlight the quest for a more sustainable international investment regime that promotes Indigenous peoples’ wellbeing and environment protection. We argue that future reform could be promoted not only over ISDS procedural matters, but also by upgrading substantive rules in international investment agreements (IIAs), emphasizing free, prior, and informed consent (FPIC), and strengthening foreign investors’ corporate social responsibilities (CSR).

Highlights

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We further studied the essentials of these cases, including the arbitrating authorities, applicable laws, parties and merits of disputes, and identified 10 typical ones that are in close connection with Indigenous peoples’ environmental rights (Table 1)
With respect to the arbitration results, no matter whether the final decision was in favor of foreign investors or the host state, we found that in most cases the investor-state dispute settlement (ISDS) tribunals did not take into account Indigenous peoples’ environment protection as an important factor in their adjudication of investor-state disputes (Table 3)

Summary

Introduction

Publisher’s Note: MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations. 70 countries worldwide, such as the Lakota in the United States, the Mayas in Guatemala, the Saami of northern Europe, the Aboriginal and Torres Strait Islander peoples of Australia, and the Maori of New Zealand. Indigenous peoples’ rights, including their right to a healthy and sustainable environment, are widely acknowledged by the international community and protected by a number of international legal instruments. The Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted by the International Labour Organization in June 1989, requires that national governments “shall take measures . Peoples (UNDRIP), which is by far “the most comprehensive international instrument on the rights of indigenous peoples” [4], emphasizes protection of their rights to lands and recourses, as well as the free, prior, and informed consent (FPIC) principle [5]. Indigenous peoples mostly reside in natural resource-rich regions that are more likely to attract international investment made by foreign investors, whether operating

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